HARLAND & HARLAND
[2020] FamCA 321
•4 May 2020
FAMILY COURT OF AUSTRALIA
| HARLAND & HARLAND | [2020] FamCA 321 |
| FAMILY LAW – PARENTING – Rice & Asplund – Where the mother seeks Orders to relocate the child’s residence – Where the father seeks that application be dismissed pursuant to the principles in Rice & Asplund – Where the mother’s proposal would be a significant change in circumstances for the child – Father’s application dismissed. |
| AMS v AIF (1999) 199 CLR 160 Mahoney & Dieter [2019] FamCAFC 39 Marsden & Winch (2009) 42 Fam LR 1 Rice & Asplund (1979) FLC 90-725 |
| APPLICANT: | Mr Harland |
| RESPONDENT: | Ms Harland |
| FILE NUMBER: | SYC | 4699 | of | 2015 |
| DATE DELIVERED: | 4 May 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 4 May 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lethbridge SC |
| SOLICITOR FOR THE APPLICANT: | NLS Law |
| SOLICITOR FOR THE RESPONDENT: | Mills Oakley |
Orders
IT IS ORDERED
That the father’s interim application, contained in his response filed 19 November 2019, be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Harland & Harland has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 4699 of 2015
| Mr Harland |
Applicant
And
| Ms Harland |
Respondent
REASONS FOR JUDGMENT
Mr Harland (“the father”) and Ms Harland (“the mother”) are the parents of X who is aged seven years.
On 30 November 2017, final parenting orders were made by consent which provide for X to live with the mother and to spend time with the father on Wednesday and Thursday evenings in one week and, in the alternate week for the Thursday evening to be extended until school on Monday.
In addition, the orders provide for X to spend half of the school holidays with the father.
On 16 October 2019, the mother filed an application seeking to relocate X’s place of residence from Sydney to Town P.
That application is opposed by the father who, in a response filed 19 November 2019, seeks an order that the mother’s application be dismissed “pursuant to Rice v Asplund”.
THE LAW
The applicant relies on the principle first enunciated by the Full Court in Rice & Asplund (1979) FLC 90-725 where the Court held:
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 (passage quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
The application of the principle was further explained by the Full Court in Marsden & Winch (2009) 42 Fam LR 1:
In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.
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.
(footnotes omitted)
In Mahoney & Dieter [2019] FamCAFC 39, the Full Court stated the rule simply:
...consider the past circumstances, the evidence on which the decision was based and whether there is a likelihood of orders being varied in a significant way as a result of a new hearing.
WHAT IS THE ASSERTED CHANGE OF CIRCUMSTANES?
In 2019 the mother married Mr H and their son Y was born in 2019.
The mother was raised on a farming property at Town P where her parents still live. Mr H was also raised in the country.
The mother’s parents have offered Mr H employment, and the mother and Mr H propose that they move to Town P and rent a house in town so that Mr H can work for the mother’s parents.
The mother proposes that X spend two weekends in each school term with the father and that she spend the whole of the short school holidays, at the end of Terms 1, 2 and 3 with him and also half of the extended Christmas holidays.
It is the mother’s case that X is accustomed to flying unaccompanied between Sydney and Town Q.
The mother proposes that X attend a local primary school but that, as the parents have previously agreed, she will board in secondary school in Sydney.
In short, the case the mother seeks to run at trial is one where X would live with her and Mr H in Town P and that the arrangements whereby she spends time with her father and paternal family are varied to accommodate the relative distances involved.
I do not accept that the mother should be prevented from bringing an application to relocate X’s place of residence only because the change is prospective.
The mother proposes a significant change of circumstances for X and it is arguable that the current orders might be significantly changed if a Court were to hear and determine the application.
The mother’s freedom of movement and her right to live where she wishes to live are important rights which the law upholds and, as Kirby J. stated in AMS v AIF (1999) 199 CLR 160,
…such rights exist in a society whose members enjoy a high measure of freedom of movement, which is not lost by reason only of the responsibilities which go with custody and guardianship of a child.
The father’s interim application, contained in his response filed 19 November 2019, will be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 4 May 2020.
Associate:
Date: 04.05.2020
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