Hibben & Osava
[2022] FedCFamC2F 1380
Federal Circuit and Family Court of Australia
(DIVISION 2)
Hibben & Osava [2022] FedCFamC2F 1380
File number(s): ADC 3338 of 2019 Judgment of: JUDGE JENKINS Date of judgment: 27 October 2022 Catchwords: FAMILY LAW – PARENTING – interim hearing – recent final consent orders – Rice & Asplund – material change of circumstances – best interests – interim relocation – application dismissed Legislation: Family Law Act 1975 (Cth) ss 60CC, 117, 121, 121(9)(g)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13 and r 10.14(b)
Cases cited: Marsden & Winch (2009) 42 Fam LR 1
Poisat & Poisat [2014] FamCAFC 128
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) 217 FLR 164
Division: Division 2 Family Law Number of paragraphs: 51 Date of last submission/s: 23 September 2022 Date of hearing: 23 September 2022 Place: Adelaide Counsel for the Applicant: Ms Lewis Solicitor for the Applicant: Barnes Brinsley Shaw Lawyers Counsel for the Respondent: Ms Horvat Solicitor for the Respondent: Mellor Olsson ORDERS
ADC 3338 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS OSAVA
Applicant
AND: MR HIBBEN
Respondent
order made by:
JUDGE JENKINS
DATE OF ORDER:
27 October 2022
THE COURT ORDERS THAT:
1.The mother’s Amended Initiating Application filed 10 June 2022 be dismissed.
2.There be no order as to costs.
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 a pseudonym Hibben & Osava has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS
introduction
This is a parenting matter concerning the one child X born in 2012, aged 10 years.
Final orders were made by consent with respect to X on 22 June 2021 (“the final orders”).
The final orders provided for X to live with the mother, for the mother to have sole parental responsibility and for X to spend time with the father in accordance with his wishes. The orders also provided for the father to be able to communicate with X via email, to send cards, letters and gifts and for the father to be able to attend X’s school events and his extracurricular activities.
At the time the final orders were made, the parties were both living in Adelaide. Although it was understood the mother wished to move to Queensland with X, as her parents had moved there earlier that year, it was agreed she would not do so until the end of 2023.
Accordingly, the final orders restrain the mother from moving X’s principal place of residence from the Adelaide metropolitan area until he completes year 6 at B School.
On 28 April 2022, only 10 months later, the mother filed a fresh Initiating Application seeking final orders that she be able to relocate with X to Queensland.
On 10 June 2022 the mother filed an Amended Initiating Application, this time including interlocutory orders that she be able to immediately relocate with X to Queensland.
The father seeks the mother’s application be dismissed based on the principles in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”).
background
The parties were in a relationship between about 2008 and May 2015.
X has lived with the mother since separation and has been estranged from his father for most of that time.
The first set of final parenting orders in this matter were made on 7 June 2016 and provided for X to live with the mother and spend alternate weekends with the father.
The father says his relationship with X broke down in or around 2017 when he commenced a relationship with his current partner.
The mother in turn alleges the father’s new partner was aggressive towards X and that is why X did not wish to attend time.
The father consequently issued new proceedings in 2019.
Orders were subsequently made for reunification therapy in October 2019 with Ms C. This was unsuccessful. Time was attempted at a contact centre but was similarly unproductive.
A report was obtained in June 2020 from X’s psychologist. This confirmed X’s consistent narrative that he did not want to see or have a relationship with his father.
The parties and X attended upon Ms D for the purpose of a Family Assessment Report which was released in May 2021. No observations were made between X and the father as X refused to see him.
It appears the parties subsequently attended a mediation and with the benefit of Ms D’s report agreed to the final orders made on 22 June 2021.
the rule in Rice & Asplund
In the case of Rice & Asplund, Evatt CJ said that the Court should only hear an application to alter an earlier parenting order if 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…
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.
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.
This principle is based on the notion that continuous litigation over children is not generally in their best interests: see SPS & PLS (2008) 217 FLR 164 (“SPS & PLS”), cited with approval in Poisat & Poisat [2014] FamCAFC 128.
In addition, the Full Court decision in SPS & PLS said that:
The essential question however is as to the sufficiency of new events to provoke a new enquiry. The answer to this question involves putting events in the context of the broader circumstances pertaining to arrangements for a child and measuring the significance of the events against the significance of the steps that might follow in light of them.
Put another way, the Court must consider whether a variation to the orders would benefit the child more than the disruption and emotional harm to them caused by re-litigation: Marsden & Winch (2009) 42 Fam LR 1(“Marsden & Winch”). In making this determination the Court must consider:
(a)The past circumstances, including the reasons for the decision and the evidence upon which it was based;
(b)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing;
(c)If there is such 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.
The Full Court in Marsden & Winch ultimately simplified this down to a two-step enquiry:
(a)Firstly, the person seeking to re-agitate parenting orders must establish there is a prima facie case of changed circumstances; and
(b)If so, the Court must then determine whether the magnitude of the changed circumstances justifies embarking on a further hearing.
Should the Court determine the application to dismiss as a preliminary matter?
The Court can consider the Rice & Asplund principle at any point in proceedings, including after the preparation of a Family Assessment Report. The father seeks that the matter be dealt with as a threshold issue, and urges the Court to apply the rule at this early stage.
In my view, taking into account all of the circumstances of this case, I accept that it is appropriate to deal with the father’s application to dismiss as a preliminary matter.
Significant or material change in circumstances
It is common ground that subsequent to the making of the final orders, that the mother’s brother, who lived in Adelaide, obtained work in Queensland and moved there with her sister-in-law. The mother says she had no knowledge this was a possibility when she agreed to the final orders.
The mother says her brother and sister-in-law provided her with substantial practical and emotional support in caring for X. This included when X was home from school sick or otherwise home due to a pupil free day and she had to work. They also helped out if she had an appointment, when she was in hospital or she had to travel for work. She says that her need for this support has only increased since the making of the final orders as her child support has reduced from $1,400 to $443 per month and she must now work fulltime to support herself.
The mother says her situation has been made more arduous because X has had to take numerous days off school, or leave school early, due to suffering from ‘long’ COVID-19 and her mother has only been able to assist for one block of time as the maternal grandfather has cancer. The mother’s evidence is that she has therefore had to take time off work to care for X and as a consequence, her employment may now be at risk. In addition, she asserts her mental health has deteriorated, she has a mental health care plan and is on medication and that this will necessarily have an adverse impact on X.
The father does not accept that the mother relies upon her brother and sister in law for support. He says the mother did not raise this in the last proceedings and that to his knowledge she had been estranged from them in the past. I note however that in the Family Assessment Report prepared for the previous proceedings, at paragraph 52, the mother describes her parents and her brother and sister in law as her main supports. The mother also says that the father’s firsthand knowledge would be limited to seven years ago when the parties were still in a relationship. Furthermore, the mother’s evidence, is supported by affidavits from her brother and sister-in-law.
Nonetheless, the father’s counsel submitted that there was no evidence to corroborate the mother’s assertions that X has long Covid, that X has had to take time off school, that the mother’s work is under threat or as to the impact on her mental health if she was not allowed to move.
ANALYSIS
For the purpose of this hearing I must assume the mother’s evidence is accepted; as per Warnick J in SPS & PLS at [81].
However, having done so, I am not satisfied that there has been a material change in circumstances. I do not consider the brother’s move to Queensland to be a significant change in the wider context of this case. Nor the fact that the mother must now work full-time, that she receives less child support and that X may have to attend school aftercare and/or holiday programs.
However, even if I am wrong about that, and the changes are material, in my view X’s best interests would not be met by permitting the mother to relocate with him at this point in time.
I accept that there has been no apparent improvement in the relationship between the father and X since the final orders. I also accept that there does not appear to be a concrete proposal to rectify this going forward. However this appears to be no different to the situation when the final orders were made. At that time, reunification therapy had been tried and had failed and it was not anticipated that any form of additional therapy would be undertaken. The only orders made were for the lines of communication to remain open, for the father to send X cards, gifts and letters and for the father to be otherwise able to attend X’s school and activities. This appeared to be a multipronged approach and although one aspect of that has not been productive, namely the father’s attendance at school, he continues to pursue the other approaches, in particular to reach out to X through text messages.
The mother says that X has a strong desire to move to Queensland and that resisting this will be counterproductive. She says he misses his grandfather to whom he is particularly close and that they used to enjoy doing activities such as fishing and building things together. He also misses his Uncle who would take him to sporting activities with him as well as his cousins who are more like siblings to X. It was however appropriately acknowledged that X’s wishes may, at least in part, be because X is aware that his mother wants to go there.
The father’s case is that the mother has made no effort since the final orders to encourage or support his relationship with X. He says the evidence for this are the letters annexed to the mother’s affidavit including one entitled “X’s demands”. The father’s counsel pointed out that X describes the father’s partner as “they” and his half-sibling as “it”. It was submitted that I should infer that such behaviour arises from attitudes in the mother’s household and that at the very minimum the mother has done nothing to dissuade X from using such language or attitudes. Nonetheless, if I take the mother’s evidence at its highest, she says she has done everything she can to encourage X to spend time with the father but that despite these efforts X has formed his own views, based on his own experiences with the father and his partner. Her case is that all avenues have been explored to no end.
conclusion
None of the matters raised by the mother satisfies me that the parents or X’s circumstances have altered such that it is now necessary or appropriate for the Court to re-consider the parenting orders made by consent only 16 months ago.
Even if I am wrong about that, and the changes are material, in my view X’s best interests will not be met by revisiting the final orders at this point.
In coming to this conclusion I have considered the possibility that if X is forced to stay in South Australia for another year, that X will blame the father for preventing the move and that this in turn will result in X becoming even more resistant to a relationship with the father.
I have also considered that if X is allowed to go to Queensland then he may have a more positive mindset and be more receptive to a relationship with his father. However I cannot be confident that this would be the case. In my view there is a real possibility that if X goes to Queensland at this point in time that this would close the door to any relationship with the father.
On balance I am not satisfied that all avenues to repair the relationship between X and his father have been exhausted in South Australia. The intention behind the final orders was clearly to give the relationship time to repair before the move and there is still time.
Whilst I accept the mother’s major supports have moved to Queensland, which is likely to make life more difficult, I am not satisfied that she is totally lacking in support. She told Ms D in the Family Assessment Report she has developed good friendships. She mentions in her evidence families at the school who have assisted her. The school has afterhours care and presumably some form of holiday care is available either at the school or by an independent provider.
Although this will no doubt displease the mother, I am not satisfied on the evidence before me that this will have such a significant impact on her mental health that it will necessarily impact on X.
In coming to this decision I have considered each of the primary considerations and additional considerations in s 60CC of the Family Law Act 1975 (Cth) (“the Act”); although as this is an interim hearing I am permitted to give reasons in short form and am not required to specifically address each.
In summary, the need for X to have a meaningful relationship with both his parents outweighs any risk that I can see to X’s physical or mental wellbeing in the short term of remaining in Adelaide.
It is also a relatively short period of time, albeit an important one, in which I would hope the mother and father would focus their energies on endeavouring to rebuild the relationship between X and the father, before it is potentially too late.
For these reasons I am dismissing the mother’s application filed 10 June 2022.
Finally, the father seeks costs on an indemnity basis in the event he is successful. I have read the submissions contained in the father’s outline. I have considered the matters set out in s 117 of the Act, noting that parties ought usually bear their own costs subject to certain considerations. Although the father has been wholly successful I do not consider that this is a straight forward case with one obvious answer. The mother has raised legitimate arguments to which I have given careful consideration. In such circumstances I do not believe it is appropriate to make an order for costs.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 27 October 2022
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