Hadlow & Davis
[2022] FedCFamC1F 641
Federal Circuit and Family Court of Australia
(Division 1)
Hadlow & Davis [2022] FedCFamC1F 641
File number(s): ADC 3076 of 2017 Judgment of: BERMAN J Date of judgment: 30 August 2022 Catchwords: FAMILY LAW – Children – where final parenting orders were made in 2020, following a trial – where the father seeks orders to set aside or vary the final orders – where the mother seeks orders to dismiss the father’s application – consideration of the rule in Rice & Asplund – Consideration of whether the evidence presented represents a material change of substance – where there is insufficient evidence to support an extension of the father’s time during term time – where there is merit to the father’s application for an extension of Christmas school holiday time Legislation: Family Law Act 1975 (Cth) ss 45A(1), 45A(2), 45A(3), 45A(4), 69ZN, 117(2A)(g) Cases cited: Carriel & Lendrum (2015) FLC 93-640
Freeman & Freeman (1987) FLC 91-857
Hadaway & Beckham [2019] FamCAFC 137
Marsden & Winch (2009) 42 Fam LR 1
McEnearney & McEnearney (1980) FLC 90-866
Rice & Asplund (1979) FLC 90-725
Searson & Searson (2017) FLC 93-788
SPS & PLS (2008) FLC 93-363
Division: Division 1 First Instance Number of paragraphs: 56 Date of hearing: 3 August 2022 Place: Adelaide Counsel for the Applicant: Mr Robinson Solicitor for the Applicant: Adelaide Family Lawyers Counsel for the Respondent: Mr Childs Solicitor for the Respondent: VP Lawyers ORDERS
ADC 3076 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HADLOW
Applicant
AND: MS DAVIS
Respondent
order made by:
BERMAN J
DATE OF ORDER:
30 August 2022
1.THE COURT ORDER, 6 and 7 of the final orders sought be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under the pseudonym Hadlow & Davis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
By Initiating Application filed 3 May 2022, Mr Hadlow (“the father”) seeks to discharge final orders made 19 March 2020, save and except for paragraphs 3(e), 3(f), 3(g), 5, 6, 7, 8, 9, 10, 11 and 12 noting that usual fortnightly time spending shall be suspended for all special occasion time spending.
Paragraphs 1 to 3(d) inclusive of the final orders made 19 March 2020, concern parental responsibility and the extent to which Z born in 2016 (“the child”) lives with and spends time with the father and Ms Davis (“the mother”).
By Response to final orders filed 6 June 2022, the mother seeks that the father’s Initiating Application be dismissed and that the Court should decree that pursuant to s 45A(2) of the Family Law Act 1975 (Cth) (“the Act”) the application has no reasonable prospect of success.
In addition, the mother seeks a declaration pursuant to s 45A(3) of the Act, declaring the father to be a vexatious litigant. The mother’s counsel conceded that it was unlikely the Court would find that the father was a vexatious litigant and that order sought was abandoned.
On closer consideration, the mother’s opposition to the father’s Initiating Application was based upon the decision in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”). The application for dismissal is an assertion that the application of s 45A of the Act relies upon the principles governing an application for summary dismissal.
The final orders that the father seeks to discharge, are set out as follows:-
(1) …
(2)That the parties have shared parental responsibility for [the child] EXCEPT that the mother shall have sole parental responsibility for any major issue affecting the child’s health PROVIDED that she shall use her best endeavours to reach agreement with the father but if unable to do so THEN the mother shall make the necessary decisions and advise the father as soon as is reasonably practicable thereafter.
(3) That the child live with the mother and spend time with the father as follows:-
(a) …
(b) From 27 April 2021:-
(i) Each alternate weekend from the conclusion of school on Friday to the commencement of school on the following Monday commencing 30 April 2021;
(ii) Each alternate Wednesday from the conclusion of school until 7.00 pm commencing 5 May 2021;
(iii) In odd numbered years for each of the short end of term holidays from 5.00 pm on the first Sunday until 5.00 pm on the following Saturday commencing 2021 and from 5.00 pm on the second Sunday until 5.00 pm on the following Saturday in even numbered years commencing 2022;
(c) In even numbered years for the long summer holiday period during the second week of the holiday period from 5.00 pm on the second Sunday until 5.00 pm on the following Saturday and during the fourth week of the holiday period from 5.00 pm on Sunday until 5.00 pm on the following Saturday;
(d) In odd numbers years for the long summer holiday period during the first week of the holiday period from 5.00 pm on the first Sunday until 5.00 pm on the following Saturday and during the third week of the holiday period from 5.00 pm on the third Sunday until 5.00 pm on the following Saturday;
…
The orders sought by the father in his Initiating Application which would represent a significant increase in the time that the child would spend with him are as follows:
(1) …
(2) [The child], spend time with the father in alternate weeks from the conclusion of school (or 4.00pm if a non-school day) on Wednesday until the commencement of school (or 9.00am if a non-school day) on the following Monday;
(3) That the said child spend time with the father for school holidays, noting that the usual time spending in paragraph 2 shall continue and be extended for the number of days noted herein:
(a) For the April and September/October short term school holidays in each year for one week comprising seven nights as an extension of the father’s usual fortnightly time spending pursuant to paragraph 2 herein;
(b) For the July school holidays in each year, noting that these run for three weeks at the child’s private school, for an additional two nights prior to the father’s usual fortnightly time spending pursuant to paragraph 2 herein;
(c)For week about time during the Christmas school holiday period such that the father’s usual fortnightly time spending shall be extended to seven nights in each fortnight such that the time shall commence at 9.00am on the Monday prior to the father’s usual Wednesday commencement time until the following Monday at 9.00am.
The father also seeks additional orders, which would require the mother to advise the father of every event that the child may be invited to attend when not at school (presumably when the child is in the mother’s care) and that he shall be at liberty to take the child to such events. He also seeks orders to better delineate the obligation on the mother to ensure that the child attends school activities and to encourage the child to take gifts that she has made at school for the father and that she be able to give them to him.
The father also seeks injunctive relief that restrains the mother from:
(a)Abusing, criticising or denigrating the father in the child’s presence or hearing, or at all, or from allowing or encouraging any other person to do so;
(b) Encouraging the child to call the father by his first name rather than “dad”;
(c)Informing the father that the child will not be attending school activities when this is not the case;
(d)Posting any issues or allegations in these proceedings on any form of social media or discussing same with any other person
(e)Dressing the child in old second-hand school uniforms/school bag on handover days with the father.
It is immediately apparent that the orders sought to be discharged, include the order for parental responsibility. The orders sought by the father do not provide for the retention of order 2 made 19 March 2020, or a different order for parental responsibility.
The litigation between the parties has been relentless since commenced in 2017. The mother alleged that the father had engaged in physical and sexual abuse on an ex-nuptial child of the mother, which caused her to consider that the father may well present as a risk to the child. At trial, the mother conceded that there was no substance to the claim of sexual or physical abuse but that the father had fabricated the potential risk thereby enabling him to “gas light” the mother who could then be portrayed as not being prepared to support a relationship between the father and the child.
Following the delivery of judgment and the making of final orders on 19 March 2020, the father filed an Application in a Case on 15 April 2020 seeking that the mother and the maternal grandparents pay the father’s costs of the proceedings on an indemnity basis.
Ultimately, I determined that there was merit in the father’s argument that the mother had made the proceedings more complex by either fabricating evidence of sexual abuse or being recklessly indifferent to the consequences of such an assertion and that an order for costs could be made pursuant to s 117(2A)(g) of the Act.
Judgment was delivered on 4 November 2020 and an order was made that the mother pay the father’s costs in the sum of $18,350.78 on or before 182 days from the date of the order made.
It is common ground that the mother has not paid the order for costs, putting the father in the position of filing an Application for Enforcement on 11 March 2022, which involve a financial examination of the mother and then an opportunity to make submissions as to what order, if any, should be made by way of enforcement.
legal principles
The mother’s counsel relies upon the principles as set out in Rice & Asplund (supra) per Evatt CJ at 78,905:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material….
(Citations omitted).
The question that then needs to be asked is whether the principles in Rice & Asplund (supra) should apply to prevent the father pursuing orders in respect of the child. In Freeman & Freeman (1987) FLC 91-857 Strauss J said at 76,470 to 76,471:
Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family. It is financially burdensome. … The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. … Each case must depend on its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children.
Similar matters were expressed by Warnick J in SPS & PLS (2008) FLC 93-363 (“SPS & PLS”) where his Honour observed and sought to provide some better clarity as to the magnitude of the change in circumstances that would justify a rehearing. His Honour said at [81] as follows:
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 McEnearney & McEnearney (1980) FLC 90-866, Nygh J considered the application of what was then the recent decision of Rice & Asplund (supra). His Honour said at 75,499:
Having said that I would hasten to add that the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
It is axiomatic that the test in respect of an application seeking to apply the rule in Rice & Asplund (supra) be the best interests principle.
In the decision of Searson & Searson (2017) FLC 93-788 (“Searson”), the Full Court considered the application of the rule in Rice & Asplund (supra) and the decision by Warnick J in SPS & PLS (supra). Their Honours approved of the following remarks of the Full Court in Marsden & Winch (2009) 42 Fam LR 1 and said at [16], they said as follows:-
[57]. In Miller … the court posed the question:
[105]Adapting the language used by Warnick J in SPS and PLS ... the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking upon a hearing?
[58]. That question might be better formulated in another way in the following proposition, namely, that there is a requirement:
(1) for a prima facie case of changed circumstances to have been established; and
(2) for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
In the decision of Carriel & Lendrum (2015) FLC 93-640 the Full Court said at 80,173:
57.In a case where the principle in Rice & Asplund 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/ren 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/ren 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/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
Section 69ZN of the Act details the principles for conducting child-related proceedings and is relevant to the exercise of judicial discretion. The following principles in s 69ZN of the Act are of relevance:-
…
Principle 1
(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.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
In Hadaway & Beckham [2019] FamCAFC 137 the Full Court summarised the authorities as follows:
15.Although trite, it is worthwhile making clear that the father needed to demonstrate not just that there had been a change in circumstances, but that the change was sufficiently significant to warrant revision of the existing orders in any particular way (see SPS and PLS (2008) FLC 93-363 at [1]; Marsden v Winch (2009) 42 Fam LR 1 at [48]).
The father’s application
The Initiating Application seeks interim orders for an extension of time that the child currently spends in the father’s care. The basis upon which the father seeks to establish that grounds exist to reconsider the existing parenting orders, are set out in the father’s affidavit filed 3 May 2022. Paragraph 5 of the father’s affidavit provides a convenient summary of matters relied upon by the father:
5. I seek a change to the said Final Order for the following reasons:
a.The mother changed the child’s school enrolment without my agreement, from […] (Early Learning Centre) where the child had been attending daycare/kindy since May 2019, to [T School] in December 2020 (hereinafter referred to as [“T School”]);
b.In discussions with the mother about this we agreed for [Z] to remain enrolled at [T School] as long as the mother paid the school fees as I could not afford those. However the mother has since taken actions to discourage my relationship with the child which I have set out in detail further in this affidavit;
c.I sought a Family Dispute Resolution (“FDR”) conference to resolve those issues and the mother and I attended on 10 January 2022 but were unable to reach agreement.
The first issue relied upon is the consequences, if any, of the mother changing the child’s school enrolment from Early Learning Centre to T School.
The reasons for judgment delivered on 19 March 2020 did not provide for the future arrangements for the child’s education given that at the time of the hearing, she was 3 years of age.
To the extent that the educational arrangements for the child should properly be considered as a “major issue” the parties were, and remain, obliged to discuss and consult with each other given the order for shared parental responsibility.
The father’s affidavit confirms that there was discussion between the parties and agreement was reached that if the mother wished to enrol the child at T School, then she would pay all school fees and other costs in doing so.
It is apparent from paragraph 8 of the father’s affidavit, that in his ready agreement to the educational arrangements as proposed by the mother, he did not inform himself of the length of the T School school holidays. The significance of school holidays is that there is three weeks in July and seven to eight weeks during the Christmas holiday period. The father contends that as a result of the new arrangement, he misses out on some extra days in July and possibly a week, to a week and a half, during the Christmas school holidays given that the final orders suspended his time during all school holidays.
The father also contends, that since the final orders were made there has been difficulty at handovers. Without the father providing any detail or particularity, his broad assertion is that the maternal grandparents are involved at handover and at times the transition of the child to the father’s care, has been the subject of anger and aggression.
It is not enough that the father makes the broad assertion that handover of the child has become problematic. Without detail, it is difficult to gage how frequently the problem is experienced, but of greater importance is that the father does not propose a change to the handover arrangements that would prohibit the mother using the maternal grandparents to facilitate the child going into the father’s care. In the absence of an order sought, I do not consider that what is asserted by the father in paragraphs 13 to 16 of his affidavit have more general application to the utility of the final orders.
It may be that depending upon how egregious the alleged conduct of the maternal grandparents might be, the father could properly consider contravention proceedings to remedy the perceived mischief.
That is not to suggest that if the handover arrangements are problematic, that the mother should do nothing to remedy the problem. It may well be that if the father’s application was crafted with better particularity and that there was an order sought that might remedy the problem, it could support a finding of a material change in the circumstances warranting the proceedings being enlivened.
That is not the position as currently presented and as such, I do not consider that the matters raised by the father in respect of the handover arrangements would support the Court’s further involvement.
The father seeks an extension of his current time which is from Friday to Monday in alternate weeks to commence on Wednesday.
The basis upon which the extension is sought is at first consideration scant.
The extension sought of the father’s time during school term time is underpinned by a concern expressed in paragraph 19 of his affidavit that the child is dressed in second hand uniforms and that there is some embarrassment caused to the child by not having new uniforms and school equipment. There is no substance in the father’s assertion.
The father agreed to the mother’s proposal to enrol the child in T School providing he was relieved of any financial responsibility. There is nothing to suggest that the child’s uniform and other school related clothing is inadequate or unsuitable.
The second basis for seeking an extension of time appears to relate to the extent of time that the child spends with the father’s children from an earlier relationship. The child’s half siblings spend Wednesday to Monday on a fortnightly basis with the father and during school holidays they remain with him for seven consecutive nights in each of the school holidays and week about during the Christmas school holidays.
The short summary is that the father contends there is a benefit to the child in spending as much time with him, as do his other children, in order to reinforce the sibling relationship.
The arrangements in respect of the father’s other children were issues raised during the course of the final hearing. It is not suggested that arrangements have changed, nor indeed is it the contention of the father that the child will necessarily gain benefit by the extension of time that he seeks.
A consideration of the reasons given by the father for seeking orders of injunction are matters that are able to be dealt with by way of enforcement or contravention if the father considers that the orders lack compliance by the mother.
A consideration of the application of the rule in Rice & Asplund (supra) is to be determined by what is in the child’s best interests. There is a clear distinction between the consideration that must be given to the application of Rice & Asplund (supra) as opposed to whether there is no reasonable prospect of successfully defending the proceedings pursuant to s 45A(1) of the Act. The test is not that the application is hopeless, or is bound to fail before a court could decide that it has no reasonable prospect of success. Section 45A(4) of the Act provides that:
The court may dismiss all or part of the proceedings … if [the court] is satisfied that the proceedings or part is frivolous, vexatious or an abuse of process.
The reason that the rule in Rice & Asplund (supra) requires a high bar before a court should consider that a child should be the subject of further litigation, is the real risk that ongoing litigation is unlikely to ever be in the interests of a child or children. It is therefore a matter of balance and the exercise of the Court’s discretion based upon what is in the child’s best interests.
It may well be the case that the father has genuine grievance in respect of the conduct of the matter or that he believes a different order would be of advantage and benefit to the child. The litigation has been ongoing since 2017. The child has been the subject of litigation for five years.
The parties give every indication of being unrelenting in their desire to pursue litigation for its own purpose.
It is regrettable that the parties are not able to resolve their differences in what appears to be issues of narrow compass that would invite ready consensus.
I have considered the proposed orders sought by the father and propose to dismiss the orders sought by him by way of final orders save and except for 3(c).
The consequence of the juxtaposition of the orders made on 19 March 2020, and the T School holidays, is that the father may well not see the child for an extended period of time being the balance of the Christmas school holidays either as, and from, the conclusion of the father’s time, being the third week in odd numbered years for the fourth week in even numbered years.
The tenor of the final orders was predicated upon a determination that the child would benefit from a meaningful relationship with the father underpinned by regular time being spent.
Whilst I do not consider that there is evidence presented that would support an extension of the father’s time during school term time or over the short end of term school holidays, the same cannot be said for the Christmas period.
As such, I consider that there is merit in the father’s application limited to the time spending arrangements during the Christmas school holidays and that the period during which the father will not see the child represents a material change of substance.
Accordingly, I propose to dismiss all other orders other than order 3(c) of the final orders sought.
Whilst it is not a matter for me at this stage to comment on the merits of the orders sought by either of the parties, given that the issue is narrow, the interests of the child will be well served by the parties resolving their differences and concluding the proceedings.
I make the order as appears at the commencement of these reasons.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 30 August 2022
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