Isaac and Isaac (No.4)
[2015] FCCA 1845
•25 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ISAAC & ISAAC (No.4) | [2015] FCCA 1845 |
| Catchwords: FAMILY LAW – Parenting − application to dismiss parenting proceedings replying on principles set out in Rice & Asplund (1979) FLC 90-725. |
| Legislation: Family Law Act 1975 (Cth), s.60CC |
| Rice & Asplund (1979) FLC 90-725 Isaac & Isaac [2013] FCCA 136 |
| Applicant: | MR ISAAC |
| Respondent: | MS ISAAC |
| File Number: | DGC 400 of 2012 |
| Judgment of: | Judge O’Sullivan |
| Hearing date: | 24 June 2015 |
| Date of Last Submission: | 24 June 2015 |
| Delivered at: | Dandenong |
| Delivered on: | 25 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Byrnes |
| Solicitors for the Applicant: | Macpherson & Kelley Lawyers |
| Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | Mr Taghdir |
| Solicitors for the Independent Children’s Lawyer: | Taft Lawyers |
ORDERS
The proceedings be dismissed pursuant to Rice & Asplund (1979) FLC 90-725 and the proceedings be removed from the Pending Cases List.
The order appointing the Independent Children’s Lawyer be discharged.
Pursuant to s.65DA(2) of the Family Law Act1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and these particulars are included in these orders.
AND THE COURT NOTES
A.The orders made on 24 June 2013 remain in full force and effect.
IT IS NOTED that publication of this judgment under the pseudonym Isaac & Isaac (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT DANDENONG |
DGC 400 of 2012
| MR ISAAC |
Applicant
And
| MS ISAAC |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”), Evatt CJ said that a Court should not lightly entertain an application to reverse an earlier custody order, as to do so would be to invite endless litigation as change is an ever present factor in human affairs.
As has been said in Langmeil & Grange (2013) FamCAFC 31 (“Langmeil & Grange”), what is referred to as the rule in Rice & Asplund is founded on the notion that continuous litigation over a child or children is generally not in their interests. In these proceedings that issue arises squarely for consideration.
Background
These proceedings concern Y born (omitted) 2001 and X born (omitted) 2005 (“the children”). The parties to these proceedings are Mr Isaac (“the father”) and Ms Isaac (“the mother”).
The historical background to these proceedings is set out in Isaac & Isaac [2013] FCCA 136.[1] For those reasons, over the course of 120 pages, the Court explained the reasons why final parenting orders under the Family Law Act 1975 (Cth) (“the Act”) were made for the children on 24 June 2013 (“the June 2013 orders”).
[1] At paragraphs, amongst others, [1] through to [54].
The immediate procedural and factual background to this latest round of proceedings between the father and the mother is set out in a number of ex tempore decisions referred to as Isaac & Isaac [2014] FCCA 3173 on 4 August 2014, Isaac & Isaac(No.2) [2014] FCCA 3174 on 24 October 2014 and Isaac & Isaac (No. 3) [2015] FCCA 1747 on 26 February 2015.
By virtue of the orders referred to in the last mentioned decision, these latest proceedings between the father and the mother were adjourned to 24 June 2015 for hearing of the father’s application for the Court to dismiss the proceedings pursuant to the rule in Rice & Asplund. At the hearing on that day, the father was represented by Ms Byrnes of Counsel, the mother appeared in person, and Mr Taghdir appeared as Independent Children’s Lawyer.
The father relied on his further amended application filed 27 May 2015, his affidavit filed 27 May 2015, his affidavit filed 27 June 2014 and his written submissions filed 27 May 2015.
The mother relied on her further amended response filed 11 June 2015, the affidavit of Dr V filed 19 June 2015, her affidavit filed 11 June 2015, her affidavit filed 19 June 2015, her affidavit filed 20 November 2014, her affidavit filed 13 February 2015, and her written submissions filed on 11 June 2015.
On 24 June 2015, the Court heard submissions from the parties and at the end of that hearing, adjourned the matter overnight to today to consider what orders should be made.
Father’s Position
Turning then to the father’s position. In his further amended application, the father sought the following orders:
“10.That the Court make a declaration that the Final Orders made on 24 June 2013 (“the 2013 Final Orders) reman in full force and effect.
11. That all extant applications be dismissed.
OR IN THE ALTERNATIVE
12. That the 2013 Final Orders remain in full force and effect.
13.That the wife comply with any treatment recommended by Dr T and if that treatment recommends further psychiatric or psychological treatment she provide the husband forthwith with the contact details of any treating mental health professionals and provide the authority required under order 9 of the 2013 Final Orders.
14.That the parents communicate by text message whenever possible.
15.That all changovers which do not occur at the children’s schools occur at the Husband’s residence unless agreed otherwise between the parties.
16.That the wife ensure that the children attend school when in her care and if too unwell to attend she provide the school, the Independent Children’s Lawyer and the Husband with a copy of a medical certificate from a qualified medical practitioner stating that the relevant child was too unwell to attend school and the reasons in detail why the child is not well enough to attend school.
17.That the wife, other than in an emergency, be restrained from giving the children any medical treatment without the guidance and recommendation of a qualified doctor and without first notifying the Husband.
18.That the wife follow the treatment prescribed by any treating medical practitioner of the children including but not limited to administrating all prescribed medication or creams.
19.That the wife be restrained from making arrangements directly with the children regarding their time with her.
20.Such further and other orders as this Honourable Court considers appropriate.”
At the hearing, the father made clear he primarily sought orders 10 and 11 and pressed for the proceedings to be dismissed pursuant to the rule in Rice & Asplund. It was only in the alternative and only if the Court determined not to apply the rule in Rice & Asplund that the father sought the other orders. This position was the case on an interim or final basis. The father relied on the material referred to earlier in these reasons and the submissions to which I will return presently.
Mother’s Position
In terms of the mother’s position, in her further amended response, the mother sought certain orders, the details of which are as follows:
“1.That the Father and the Mother have equal shared parental responsibility for the children:
a. Y born (omitted) 2001; and
b. X born (omitted) 2005.
2.That the children live with the Mother and spend time with the Father as follows:
a. During the school term as follows,
i. Each alternate weekend from after school on Friday until the commencement of school on Monday during the school term; and
ii. Every Wednesday evening from after school until the commencement of school on Thursday;
b. During school holidays as follows,
i. Half of the holidays;
c. During special occasions, minimum of 4 hours (4pm-8pm):
i. X's Birthday ((omitted)) 2005
ii. Y's Birthday ((omitted)) 2001
d. During other special occasions, full day:
i. Fathers Day
ii. Fathers Birthday
iii Christmas, Easter and New Years every alternate year
3. That the court accept:
a. the psychiatric report by Dr V of (omitted). Dated 11 February 2014 and
b. The updated report 20 November 2014 Dr V
c. The report by Ms E of Childrens Court dated, seen 8 January 2014
4.That both parties follow the lawful recommendations of any medical professional, when issues arise including illness or injury of the children during the periods that the children are in their respective care and
a. to notify the other parent of all details
b. to authorise the professional to speak to the other parent
5. X is to:
a. attend speech therapy sessions, to improve upon learning difficulties
b. attend ear and throat specialist and undertake an audiologist test
7. Dr V to attend and give evidence
8.That the Court make a declaration that the Final Orders made on 24 June (“the 2013 Final Orders) be dismissed
9. That all extant applications be dismissed
10.All correspondent between Father and Mother be made in writing
11.That the children have a relationship with their grandparents
12.That the Mother not be responsible for Fathers costs in this court proceedings
13That I seek a fair an impartial hearing for the best interest of my children.”
At the interim hearing, the mother sought those orders, relied on the material referred to above in these reasons, and the submissions to which I will also return.
Position of Independent Children’s Lawyer
For the reasons set out in Isaac & Isaac (No. 3) [2015] FCCA 1747 the Court had ordered the appointment of an Independent Children’s Lawyer. The Independent Children’s Lawyer who appeared at the hearing on 24 June 2015 also sought that the proceedings be dismissed pursuant to the rule in Rice & Asplund. The position of the Independent Children’s Lawyer was that the Court should make the orders set out in exhibit ICL1, the details of which are as follows:
“1.Pursuant to paragraph 10 of the Final Orders sought in the Father’s Further Amended Initiating Application filed on 27 May 2015.
IN THE ALTERNATIVE
2. Pursuant to paragraphs 5 to 8 of the Interim Orders sought in the Father’s Further Amended Initiating Application filed 27 May 2015”
The Independent Children’s Lawyer relied on and adopted the submissions made on behalf of the father including in relation to the alternative orders for the same reasons. The Independent Children’s Lawyer supplemented those submissions with his own submissions before the Court to which I will return.
Submissions of the Father
Turning then to the submissions of the father. The father’s written submissions were filed 27 May 2015 and are as follows:
“1. Orders sought by the parties
(a)Husband’s Amended Initiating Application filed 27 May 2015.
The Husband’s primary position is that his Amended Initiating Application and the Response to Initiating Application of the Wife should be dismissed. He seeks that the final orders made 24 June 2013 remain in full force and effect and not be varied.
If the court is against the Husband in this respect he seeks that the Wife be assessed by Dr T and a report of his findings and recommendations be provided to the court. He reserves his right to seek an updated family report from Dr J pending Dr T’s report. Both practitioners need to be given copies of all relevant documents including Children’s Court and DHS documents. The Husband also seeks that the Wife be restrained from taking the children to medical or mental health professionals, from denigrating the Husband or his family and friends, discussing the court proceedings with the children and making arrangements directly with the children.
(b)Wife’s Response to Initiating Application filed 20 November 2014
The Wife seeks equal shared parental responsibility with the Husband. She seeks that the children spend time with and communicate with her each alternate weekend from afterschool on the Friday until before school on the Monday. Also for half the holidays and special days. She seeks specific orders about attendance on medical practitioners and for X to attend a speech therapist and ear and throat specialist and to have an audiologist test.
2. Background…
3. Reasons for Husband’s application to the Federal Circuit Court
The Husband deposes to making his application because the Wife had initially indicated and later refused in the Children’s Court proceedings. Without the matter being listed in the FCC the Children’s Court refused to allow DHS to withdraw their application in the absence of the Wife’s consent. The Court listed the matter for a 7 day final contested hearing until the Husband issued FCC proceedings and the parties gave undertakings to the Children’s Court concerning the children’s time with the Wife.
4. The basis of the orders sought by the Husband
The Husband seeks that both his application and that of the Wife be dismissed as he contends that the matters involved in this case were fully considered in the final hearing and final orders and judgment of his Honour Judge O’Sullivan delivered 24 June 2013. He contends there has been no change in circumstances that warrant revisiting or reopening this case. To do so he contends would not be in the best interests of the children or in the interest of the administration of justice.
5. The Relevant Law
Principles established by the case of Rice and Asplund.[2]
[2] (1978) 6 FamLR 570.
The principles in the case of Rice and Asplund apply to the present case.
In that case Evatt CJ for the Full Court set out those principles as follows:
“The principles, which in my view, should apply to such cases are that the court should have regard to any earlier order and to the reasons for and the material upon which it was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation.”
The court should only hear an application to vary an earlier order if it were satisfied that there:
“..is some changed circumstance which would justify such a serious step, some new matter arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…”.
There is no right time for this to be considered and it could be done at a preliminary hearing or at some other stage including at a final hearing:
“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 circumstances which require the court to consider afresh how the welfare of the child should be best served. These principles apply whether the original order was made by consent or after a contested hearing. The way the principles apply and the factors which will justify the court in reviewing a custody order will vary from case to case.”[3]
[3] Rice & Asplund, (supra) Page 572.
Application of the principles established in Rice and Asplund
The principles in Rice and Asplund are now “firmly entrenched in family law in Australia”.[4] The principle has been repeatedly applied by the Full Court of the Family Court and at first instance for well over 30 years.[5] It continued to be applied after the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).[6]
[4] Poisat & Poisat [2014] FamCAFC 128 at [8] (“Poisat”); Morton & Berry [2014] FamCAFC 208 at [22].
[5] Langham and Langham (1981) FLC 91-014; Newling and Mole (1987) FLC 91-856; Bennett and Bennett (1991) FLC 92-191; Miller & Harrington (2008) FLC 93-383; SPS & PLS (2008) FLC 93-363;
[6] Marsden & Winch (2009) 42 FamLR 1; Langmeil & Grange, Poisat, supra.
The Full Court has considered whether the principle was so entrenched that it amounted to a “binding rule” or a principle to guide discretion. In declining to determine this issue it said that the principle or rule was “of long standing, has been consistently recognized and applied both in this Court and at first instance, and is intended to apply universally in the sense of applying to every case in which final parenting orders are sought to be discharged or varied subsequently.”[7]
[7] Poisat, supra at [13].
The Rice & Asplund principles require that there be cogent argument by the applicant for the variation as to why the earlier decision is wrong or should not be followed.[8]
[8] Poisat, supra at [14].
The court is required to consider whether in the circumstances of the case it is in the best interests of the children to revisit the case or to dismiss the proceedings.
The application of the principles is not a matter of “summary dismissal’ or “striking out” because at whatever stage in the proceedings the question is dealt with by the court it must consider the best interests of the child and any legislative provisions which are relevant.[9] The principles of “issue estoppel” or “res judicata” do not apply because in a parenting case the court can never finally dispose “once and for all” of the question of what is in a child’s best interests.[10]
[9] Miller & Harrington,supra at [72]
[10] Miller & Harrington, supra at [100]; Newling, supra at 76,467
Public Policy reasons behind the principles of Rice and Asplund
Various cases have explored the public policy reasons behind the principles:
1. to not require this would be to invite endless litigation which would not be in the interest of the proper and orderly administration of the law;[11]
[11] Rice and Asplund, supra at 572; SPS & PLS, supra at [56]
2. to revisit the case without new evidence would be in the nature of an appeal;[12]
[12] Langham, supra at 76,179
3. a subsequent judge should not just be able to substitute his or her conclusions for those of the first judge;[13]
[13] SPS & PLS, supra at [73]
4. it is prime facie not in the interests of the children to be put through the stress of further proceedings regarding parenting matters with the possibility of emotional damage. A final determination of a parenting dispute gives the children security which is an essential prerequisite to their wellbeing;[14]
[14] Freeman and Freeman (1987) FLC 91-857 Strauss J at 76,470-71; cited with approval in Reid & Lynch [2010] FAMCAFC 184 at [234]
5. it is stressful to the adults to go through the process of court proceedings again;[15]
[15] Freeman, supra at 76,470; cited with approval in Reid & Lynch, supra [234]
6. to avoid the conflict between parents where they can canvas again and again the parenting arrangements with potentially enormous harm to the children;[16]
[16] McEnearney & McEnearney [1980] FLC 90-866 at 75,499
7. it is difficult for the parent with primary care to deal with the present and plan for the future;[17]
[17] Freeman, supra at 76,470-71: cited with approval in Reid & Lynch, supra at [234]
8. it is very costly to both or one party and in particular the party with the primary financial responsibility and care of the children;[18]
[18] Freeman, supra at 76,470-71: cited with approval in Reid & Lynch, supra at [234]
When is the Rice and Asplund question to be determined in proceedings
Evatt CJ in Rice and Asplund considered that the question could be determined at a preliminary hearing.[19]
[19] Rice and Asplund, supra 572
The Full Court has made is clear in subsequent cases that the application of Rice and Asplund may be determined “at a preliminary stage” or at another stage in a parenting case.[20] It can be applied at a final hearing although arguably it would be applied differently and possibly with different weight at a final hearing.[21] When in the proceedings the principles are applied is a matter of discretion.[22]
[20] Miller & Harrington, supra at [72]; Marsden & Winch, supra at [47]; Langmeil & Grange, supra at [46];Poisat, supra [41]
[21] SPS & LPS, supra at [72]; cited with approval in Poisat, supra [40] and [43]
[22] Bennett, supra at 78,262; DL & W [2012] FamCADC 5 at [81]
However, at whatever stage Rice and Asplund is applied it “should remain merely a manifestation of the best interests’ principle.”[23]
[23] SPS & PLA, supra at [48(iii)}
How is the “Rule” Applied?
If the principles are considered at a final hearing the public policy considerations of the importance of one judge not being able to simply substitute his or her conclusions for those of another judge unless there has been a change in circumstances and if the rule is not considered “litigation will not be discouraged” would still apply.[24]
[24] SPS & PLS, supra at [73]; cited with approval in Poisat, supra [40] and [43]
If the matter is determined at a preliminary stage it is a determination on the merits.[25] The evidence must be examined to determine if there is a sufficient change in circumstances to warrant a rehearing. That may involve findings of fact in order to determine the question of change of circumstances.[26]
[25]SPS & PLS, supra at [81]: cited with approval in Poisat, supra [40] and [43]
[26] Miller & Harrington, supra at [82]
The questions to be asked by the court in where the matter is heard on a preliminary basis may be different to those asked at a final hearing.[27] At a preliminary hearing the court must ask if the evidence demonstrates a change of such significance that the best interests of the child require a revisiting of the earlier orders. The Full Court in Marsden and Winch said this question may be better formulated as follows:
[27] Morton & Berry [2014] FamCAFC 208 ay [48]
“there is a requirement;
(1) for a prime facie case of changed circumstances to have been established: and
(2) for consideration as to whether the case is a sufficient change of circumstances to justify embarking on a hearing.”[28]
[28] Morton & Berry, supra at [58]
If applied at the end of the hearing the questions is in all of the circumstances the best interests of the child require a change.
The Full Court has not determined whether the applicant’s case must be taken at its highest at a preliminary stage or whether the hearing becomes an inquiry into all matters relating to the best interests of the children.[29]
[29] Miller & Harrington, supra at [83]
In Cortes & Cabrera Wilson FM in dealing with the question of the procedure to be adopted said that the first question is whether the question should be determined on a preliminary basis or there should be a full hearing of the evidence. The second question is how should the evidence of the parties be treated for the purpose of determining the issue. It is submitted that this could involve affidavits, questions of the right to reply to an affidavit, relevant or restricted cross examination, family reports or other expert reports or written submissions.
In Poisat the Full Court considered the trial judges approach to take submissions and then accept into evidence a family report and then hear further submissions on the issue as acceptable.[31] The court is not confined to the evidence at it stands at a preliminary hearing and if it considers it needs further evidence to properly determine the Rice and Asplund issue then it can require that evidence.[32]
[31] Poisat, supra at [46]
[32] Marsden & Winch, supra at [70]
In Miller & Harrington the Full Court examined the views expressed by Wilson FM and said his discussion was useful. They however, did not have to determine whether there were in effect two choices in the case before them. The Full Court upheld the appeal in that case because the trial judge had not conducted the proceedings on a mutually understood basis and therefore the mother was not afforded procedural fairness.[33]
[33] Miller & Harrington at [84]-[91]; it is noted that the court cites this case wrongly as Collivas & Cassimatis see Marsden & Winch, supra at [54]
In Marsden and Winch the court considered this issue and decided that as the application of the “rule’ in Rice and Asplund should “always remain a manifestation of the best interests principle”, they did not consider that that principle could be given its full weight by restricting the application of the rule to two choices. They considered it better, depending on the facts of the case, to consider a broader range of processes. Besides the need to ensure the decision is based on the children’s best interests there is an important need to provide procedural fairness in the manner in which the rule will be applied.[34]
[34] Marsden & Winch, supra at [50]
The test is whether the best interests of the children are met by them not being subject for further litigation or by allowing the application to continue.[35] Put another way would a variation to the orders benefit the children more than the disruption to them caused by re-litigation.[36]
[35] SPS & PLS, supra at [81]; cited with approval in Poisat, supra at [42]
[36] Marsden & Winch, supra at [50]
The paramount consideration in determining this question is what is in the best interests of the children.[37]
[37]SPS & PLS, supra at [77]; cited with approval in Poisat, supra [40]; Marsden & Winch, supra at [50]
The degree to which the “rule” might be applied and therefore the breath of the inquiry and how it is conducted will vary according to whether the change sought is minor or far reaching.[38]
[38]SPS & PLS, supra at {48]; approved in Marsden & Winch at [46] and [47]
In Miller & Harrington the Full Court adopted the question used by Warnick J in SPS and PLS; “assuming the evidence of the mother is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?”[39] The court considered the evidence of the mother, a recent psychologists report and the recent report of a social worker. The court considered that that evidence did not show a material change in circumstances or in the central issues affecting the children from that considered by the trial judge. The court said change in circumstances put by the mother were “manifestations of the fact that the central matters found by Buckley J continue to pertain” [40]
[39]Miller & Harrington, supra at [105}
[40]Miller & Harrington, supra at [116]
The Full Court has said that in determining what is in the best interests of the children in a Rice and Asplund case the court is not required to adopt the process set out in Goode & Goode.[41] The court is not required to consider and address the matters in s60CC of the Act as to so require would be to defeat the purpose of the rule in Rice and Asplund.[42]
[41] [2006] FamCA 1346 at [82]
[42]DL & W, supra at [77]; Carriel & Lendrum [2015] FamCAFC 43 at [49] – [58] and specifically [56]
The Full Court in Poisat held that an order dismissing the proceedings is not a parenting order.[43] The Full Court in Carriel & Lendrum did not have to decide this question but said it seriously doubted that an order dismissing the application was a parenting order.[44]
[43] Poisat, supra at [53]
[44]Poisat, supra at [61]
Legislative Provisions
The relevant legislative provisions were considered in Miller & Harrington.[45]
[45]Miller & Harrington, supra at [71] - [76]
S69ZQ in giving effect to the principles in 69ZN court must decide which issues in the proceedings require full investigation and which may be disposed of summarily, decide in which order the issues are to be decided, give directions or orders about the timing of the steps, consider whether the likely benefits of take the steps justify the cost. In Miller the Full Court said the use of the words summary dismissal or strike out may not be the best terms to use in a Rice and Asplund case as the court is bound to take into account best interest requirements and the legislative requirements.[46]
[46]Miller & Harrington, supra at [72]
A Rice and Asplund case is a “child-related proceedings” so Division 12A of Part VII of the Act applies. The court therefore hearing the matter at a preliminary stage is bound to apply the provisions of Division 12A
S69ZQ therefore applies and the court must consider whether the case needs to proceed to a full hearing or can be dealt with summarily (s69ZQ(1)(a)) and to see if it can deal with as many matters as it can on a single occasion (s69ZQ(1)(g)).
S69ZR(1) empowers the court to make a finding of fact, determine a matter or make an order in relation to proceedings if the court considers that it may assist in the determination of the proceedings.
S69ZN sets out the principles for conducting “child-related proceedings”. These apply to Rice and Asplund cases.[47] These include in particular 69ZN(3) being that the first principle is that the court needs to consider the needs of the child concerned and the impact on the child of the conduct of the proceedings in determining how to conduct the proceedings. S69ZN(5) is that the proceedings are to be conducted in such a way that will safeguard the child and the parties against family violence, abuse or neglect.
[47]Miller & Harrington, supra at [76]
Application of the Rice and Asplund principles to the present case
If Court in the present case determines that the principles in Rice and Asplund apply the Husband seeks that the proceedings should be dismissed under those principles. The onus is on the Wife to show there has been a sufficient change in circumstances to warrant the court embarking on a re-hearing.
The Husband takes no issue with the matter being determined on a preliminary basis given the impact on the children of further litigation and the financial cost to him if this were allowed. He is solely financially responsible for the children and is of modest means.
Since the final orders were made the Wife has obtained a psychiatric assessment from Dr V. It is dated 11 February 2014 and was obtained for the purposes of complying with order 5 of the orders made 24 June 2013. This report finds no major mental illness at this stage. The report largely deals with the significant of the Personality Assessment Inventory assessment by Dr J. The Husband reserves his right to test this report from a number of perspectives if the case proceeds after the interim hearing.
The Wife contends that this evidence is a sufficient change in circumstance that supports her having specified time with the children and equal shared parental responsibility with the Husband. She also seeks orders in relation to medical treatment and speech and audio treatment for X.
The Wife seems to be contending that on the basis of Dr V’s report the findings of Dr T and Dr J are questionable. She seems to say that therefor the judgment of His Honour Judge O’Sullivan should be revisited. It is noted that she did not appeal this decision and a Rice and Asplund case is not a substitute for an appeal.
She has also through the Children’s Court proceedings and with the Husband’s consent now spent time and communicated with the children. That time has expanded from time supervised by DHS in early 2014 to now weekend time with the children and half of school holidays. The further time has been with the consent of the Husband. She seeks orders to provide for this time and to extend that to a meal in the other week and special days.
The Wife does not allege the Husband will not allow her to spend time with the children or that he has in any way prevented the children having a relationship with her other than in circumstances where it was not in the best interests of the children.
The Wife does not allege that the views of the children have changed since the final hearing.
It is submitted for the Husband that the events since the 24 June 2013 orders are within the contemplation of those orders. The Husband has consented to the children spending time with the Wife. With the assistance of DHS he has been able to manage the Wife’s behavior. It is submitted that apart from the incident on 17 November 2013 the children have been well behaved and settled in the Husband’s care. He contends that the 17 November 2012 incident was predictable and even inevitable. He has managed the events that unfolded as a result of that incident and the children have settled back into his care. The school reports of the children are testament to this as is the way in which both the Husband and the children have handled the Wife’s conduct since that time. There have been no further incidences of concern regarding the children’s behavior.
The orders made by the court on 24 June 2013 have remained workable and appropriate to deal with the subsequent circumstances. The orders envisaged a psychiatric report and the Husband managing the children’s time with the mother. The sole parental responsibility orders and the order restraining her from taking the children to counsellors and the like have been pivotal in containing the Wife’s behavior and her ability to interfere adversely in the children’s lives. The Husband has managed to get the children through the DHS investigation and the Children’s Court proceedings in a safe and secure manner.
It is submitted that there has been no change in circumstance that was not envisaged by the 24 June 2013 orders or that requires those orders to be varied or discharged. In fact it could be argued what happened in November 2013 and subsequently was consistent with the basis of Judge O’Sullivan’s judgment and the mental health assessments of the Wife. It was foreseen in the fabric of the orders made 24 June 2013. It is submitted that reasons for the decision in Miller and Harrington are on our fours with the circumstances of this case.[48]
It is further submitted that even if it was considered that there had been a change in circumstances that warranted revisiting the orders made on 24 June 2013 it is not in the best interests of the children for this to be done. The court here is obliged to consider this question.[49] The judgement of Judge O’Sullivan sets out the experiences of these two boys from separation until they were ordered to live with the Husband. The DHS investigation and the Children’s Court proceedings meant for these boys further police involvement, a change in their living arrangements for some days, interviews with DHS workers including at their home, almost 10 court hearings at the Children’s Court, an assessment by the Children’s Court Clinic, interviews with their own legal representatives, uncertainty, being aware of disputation between their father and mother, attendance on school counsellors, medical appointments or attempted medical appointments, undermining of the father’s care and management of the children and so on. It was clearly more of the same for the children.
In circumstances where the Wife refused to agree to end the Children’s Court proceedings and to bring the matter back to the Federal Circuit Court once DHS had no protective concerns with the children in the care of the Husband this court cannot be confident that these kinds of experiences for the children will end here.
It cannot be in the best interests of these children to have this matter litigated further for the same reasons the court had to bring an end to this kind of behavior by the Wife and its impact on the children in June 2013. There is much authority and social research to support the accepted position that ongoing conflict is harmful to children.[50] It is evident from the findings of and decision of Judge O’Sullivan in his 24 June 2013 judgment that the change of residency was necessary to protect the children from further harm.
The Wife seeks to vary the orders to give her equal shared parental responsibility. This is central to this case. It is submitted that the Wife seeks this to continue her agitation about medical and treatment matters and the Husband contends that her judgment in these matters is unreliable. Given the far reaching nature of this change the court must apply the principles in Rice and Asplund to a greater degree.[51]
The reference in the cases (including the High Court) to the debilitating effect of ongoing litigation on children and parents alike was explored in DL & W.[52] Recognition of this is seen in the provisions of the Act which provide guidance as to how children’s cases should be conducted to minimize the negative impact on them.[53]
It is submitted that it could not be clearer that the public policy reasons for the principles in Rice and Asplund apply to this case. These children need to be protected from the emotional harm revisiting this case would cause them. The Husband needs to be supported in the good work he has done with the children.
The financial drain on him in needed legal representation in the Children’s Court proceedings and now these proceeding is considerable. This impacts on the children. The Wife has either little or no means and the Husband meets the children’s financial needs.
Finally, there will be no end to this litigation if the very workable orders made 24 June 2013 are revisited or varied.
[48] Miller & Harrington, supra at [116]
[49] DL & W, supra at [77]
[50]Marsden & Winch, supra at [49]
[51]SPS & PLS, supra at [48]; Marsden & Winch, supra at [47]
[52]DL & W, supra at [65]-[67]
[53] S69ZN
Reasons for Orders sought if the court does not dismiss the proceedings
If the court decides this matter should proceed it is submitted that the issues raised are the same as those raised at the final hearing. The court cannot consider this matter afresh without a further report by Dr T and most likely an updated family report from Dr J thereafter. They gave detailed evidence in the final hearing and are best placed to review this case from an expert’s perspective.
The Husband has attempted to contain the Wife’s reaction to these proceedings by keeping his evidence general and to a minimum. If the case is to proceed further he reserves his right to depose to the facts since 24 June 2013 in more detail and to call witnesses including the DHS workers as to the Wife’s presentation.”
Those written submissions were supplemented by Counsel’s oral submissions before the Court. Counsel submitted, inter alia, that nothing had changed and the issues the mother was complaining about now were still the same. It was submitted that the June 2013 orders envisaged further issues arising and those had been accommodated and the children’s best interests had continued to be promoted, despite those issues by the June 2013 orders. Counsel submitted the proceedings should be dismissed to stop the children going around in circles.
Submissions of the Mother
The mother’s written submissions, filed 11 June 2015, are set out below:
“Orders sought by the parties
(a)Mothers Amended Initiating Application Filed 11 June 2015
That the Father and the Mother have equal shared parental responsibility for the children. Children to return to the mothers residence and that the Father spends each alternate weekend from after school on the Friday until before school on Monday, every Wednesday evening from after school until commencement on school Thursday. Also for half the holidays and special days. Interim orders equal shared parental responsibility for the children and 50/50 custody. The orders from 24/6/2013 to be dismissed. That the court accept all my medical reports and that Dr V to attend and give evidence. I do not consent to attending Dr T or Dr J, That I seek a fair and impartial hearing for the best interest of my children.
(b)Fathers Amended Initiating Application filed 27 May 2015.
The Fathers primary position is that his Amended Initiating Application and Response to Initiating Application of Mother should be dismissed. He seeks that the final orders made 24 June remain in full force and effect and not be varied.
If the court is against the Father in this respect he seeks that the Mother be assessed by Dr T and a report of his findings and recommendations be provided to the court. He reserves his right to seek an updated report from Dr J pending Dr T's report. Both practitioners need to be given copies of all relevant documents including Childrens Court and DHS documents. The Father also seeks that the Mother be restrained from taking the children to medical or mental health professionals, from denigrating the Father or his family and friends, discussing the court proceedings with the children and making arrangements directly with the children.
Chronology…
3. Reasons for Mothers application to the Federal Circuit Court
The Mother submits that there has been significant changes in circumstances due to conflicting mental health status as found by Mothers psychiatrist and Fathers psychiatrist and opinion by CCC psychologist and the FCC psychologist. The children have stated they want to live with their Mother.
4. The basis of the orders sought by the Mother
The Mother seeks that the Fathers application and the orders from 24/6/2013 be dismissed.
Mother contends following principles in Rice and Asplund, I submit there has been a significant change circumstances due to the misdiagnose of schizophrenia and therefore there is no reason that they should not come back in her care.
That I seek a fair and impartial hearing for the best interest of our children.”
In oral submissions before the Court the mother supplemented those written submissions by referring to matters in her affidavit material she believed assisted her argument. These included claims that the Department of Human Services hadn’t helped her, that the Children’s Court process was flawed and inappropriate, that her medical evidence vindicated her claims about there being no psychiatric issues with her and asking rhetorically why, if she had had a mental illness would she be doing this much to get her case heard.
Submissions of Independent Children’s Lawyer
The Independent Children’s Lawyer adopted and relied on the submissions of the father. In addition, the Independent Children’s Lawyer supplemented those submissions with oral submissions before the Court. The Independent Children’s Lawyer referred to the June 2013 orders and submitted that they had continued to meet the children’s needs and best interests, even in the face of subsequent events.
The Independent Children’s Lawyer submitted the matters the mother relied on in support of the orders that she sought were not in light of the June 2013 orders, sufficient changed circumstances and the June 2013 orders should remain in force. The Independent Children’s Lawyer, who had met with the children before the hearing, also submitted that the adverse impact on the children of further litigation, effectively putting them back at square one, dictated that the June 2013 orders should remain in place.
Principles
The parties in this matter were on notice that the issue of whether the rule in Rice & Asplund should be applied would be considered at the hearing on 24 June 2015. The parties’ written submissions filed pursuant to the orders made on 26 February 2015 make that clear beyond argument. The parties in those submissions were given an opportunity to address the authorities that have considered the principles in Rice & Asplund.
In relation to those principles in Marsden & Winch (2009) FamCAFC 152 (“Marsden & Winch”) the Full Court of the Family Court said:
“41.Warnick J in SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363 said at [1]:
The “rule” in In the Marriage of Rice and Asplund...that, where there has already been a final order in respect of parenting issues, before the court embarks on a rehearing of those issues, the applicant must establish a significant change of circumstance – is certainly useful, if not essential. But it is not the primary principle in applications for parenting orders. Nor is its utility or weight uniform across cases in which it might be applied. In particular, those attributes vary, according to whether the rule is applied at the outset of or at the end of a hearing.
42.The application of the rule was again described by Warnick J in [45] – [49] inclusive. Before turning to what Warnick J said of it, it is useful to recall that Rice & Asplund involved an appeal from custody orders which reversed an order made nine months beforehand. In her reasons for judgment (at 78,905), Evatt CJ said of the position of a court confronted with an application to change an earlier order that:
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
43.Evatt CJ went on to say that the threshold question was not necessarily one for preliminary determination.
44.As Warnick J discussed, the purpose of the “rule” is to discourage “endless litigation” In addition, as Nygh J said in McEnearney (1980) FLC 90-866 at 75,499:
...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.
45. Warnick J opined in SPS & PLS (supra) that:
58.Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This "evil" is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.
46. Warnick J had earlier said at [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.
47.We agree with those observations. Warnick J went on to consider each of these observations, recognising (at [74]) that once a court refrains from applying the rule as a preliminary matter and embarks upon a hearing the rule should not necessarily be cast aside although its force might be diminished. Importantly, Warnick J made the point that the implication should be avoided that if the rule is applied as a preliminary matter the parenting application is not dealt with on the merits. In particular, he noted that the “paramountcy principle” still applies to the decision to dismiss an application to vary (s 60CA of the Family Law Act 1975 (Cth); see also Newling & Mole [1987] FamCA 21; (1987) FLC 91-856; F & N (1987) FLC 91-813; McEnearny (supra)). We agree with the conclusion reached by Warnick J (at [81]) that:
...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.
48.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.
49.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.
50.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.”
There have been more recent Full Court decisions that have considered the rule in Rice & Asplund (supra). In Langmeil & Grange [2013] FamCAFC 31 (“Langmeil & Grange”) the Full Court said:
“43.The rule in Rice & Asplund was recently considered in
DL & W [2012] FamCAFC 5; (2012) FLC 93-496 per May, Thackray & Strickland JJ. DL & W concerned Part VII as enacted immediately prior to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011. The amendments do not affect the manner in which the rule operates. It follows that their Honours remarks in DL & W also apply to proceedings to which the current Part VII applies. Their Honours in DL & W correctly recorded that the “rule” has its genesis in remarks by Evatt CJ in Rice & Asplund at [78,905-06]: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 ... 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.
44. Evatt CJ continued:
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.
45. In DL v W, their Honours pointed out that:
The debilitating effect of ongoing litigation on children and parents alike was emphasised by Strauss J in this passage in Freeman and Freeman [1986] FamCA 23; (1987) FLC 91-857 at 76,470–71:
“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. ...”
In Langmeil & Grange (supra) the Full Court noted the remarks made in DL & W (2012) FLC 93-496 (“DL & W”) also apply to proceedings to which the current Part VII of the Act applies. In DL & W (supra) the Full Court said:
“Relevant law
60.As Evatt CJ said in Rice and Asplund, a court “should not lightly entertain” an application to reverse earlier parenting orders. The stated rationale of the then Chief Justice was the avoidance of the “endless litigation” that might otherwise ensue, since “change is an ever present factor in human affairs”.
61.As we have earlier recorded, Evatt CJ suggested (at 78,905) that a court would only hear an application to vary an earlier order if it were satisfied that there:
…is some changed circumstance 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…
62.Evatt CJ acknowledged the infinite variety of circumstances that would warrant application of the principle she had stated, and she also effectively found there was no “right” time for it to be considered. This is apparent from what her Honour said in the following passage (at 78,905-78,906):
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.
63.Evatt CJ’s views were endorsed by the other members of the bench in Rice and Asplund and have been routinely followed ever since, including after the 2006 amendments to the Act. For recent discussions of the “rule” by the Full Court see Reid & Lynch (2010) FLC 93-448, B & J [2009] FamCAFC 103, Marsden v Winch (2009) 42 Fam LR 1, Caracini & Paglietta [2009] FamCAFC 188 and Gotch & Gotch [2009] FamCAFC 3.
64.The policy considerations underpinning the “rule” were explained in McEnearney and McEnearney (1980) FLC 90-866, where Nygh J said at 75,499:
…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.
65.The debilitating effect of ongoing litigation on children and parents alike was emphasised by Strauss J in this passage in Freeman and Freeman (1987) FLC 91-857 at 76,470-71:
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. …
66.The likely adverse impact of litigation on children has also been recognised in the High Court. In CDJ v VAJ (1998) 197 CLR 172 at 204 [118] McHugh, Gummow and Callinan JJ (albeit in a different context) said:
… So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
67.The legislation itself now expressly directs judicial officers to have regard to the potential impact of proceedings on the welfare of children. As the Full Court pointed out in Miller & Harrington (2008) FLC 93-383, the provisions of 69ZN of the Act, which prescribes “principles for conducting child-related proceedings”, apply to a hearing in which Rice and Asplund is invoked. Subsection 69ZN(3) provides (our emphasis):
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.
68.There are, of course, cases where it is necessary, in the interests of the child, for a court to revisit “final orders”, whether made by consent or following a defended hearing. As Evatt CJ said in Zabaneh and Zabaneh (1986) FLC 91-766 at 75,587 (Fogarty and Renaud JJ agreeing):
The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account.
69.As the Federal Magistrate noted, the Rice and Asplund authorities were reviewed in SPS and PLS, where Warnick J recognised that the purposes that can be served by the “rule” differ depending upon the stage of the proceedings at which it is sought to be applied. For example, in the event it is addressed as a preliminary matter it is clearly more effective in discouraging “endless litigation” than if it is applied at the conclusion of the hearing.
70.Warnick J observed (at 87,451) that “at whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the ‘best interests principle’”. His Honour also recognised that “the application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order”. We respectfully adopt those observations, with the latter being of particular importance in the determination of this appeal.
71.Warnick J’s views were also endorsed by the Full Court in Marsden v Winch (supra at 19 [47]), where Bryant CJ, Finn and Cronin JJ went on to say (footnotes omitted):
48.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.
49.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.
50.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.
72. Their Honours continued:
55. Given that the application of the rule should always remain a manifestation of the best interests principle, we do not think that that principle can be given its full weight by restricting the application of the rule in Rice to two choices, either application of the rule by taking the applicant’s case at its highest, or a full hearing.
56. In our view, depending upon the facts of each case, a broader range of processes should always be considered. This is because the decision is one which must be made in the best interests of the child but may also be because of the need to provide procedural fairness in the manner in which the court determines how the rule will be applied. …
73.The Full Court then described a two step process to be followed when the Rice and Asplund “rule” is invoked. Their Honours said:
58. …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 Langmeil & Grange (supra) the Full Court said:
“In DL v W and Marsden v Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1, per Bryant CJ, Finn and Cronin JJ, their Honours endorsed, as do we, Warnick J’s approach to Rice & Asplund referred to in SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363. In particular, that the rule is a manifestation of the best interests’ principle and founded on the notion that continuous litigation over a child or children is generally not in their interests. Also, that the application of the rule is connected with the nature and degree of change sought to the earlier order.”
More recently, the Full Court has considered the rule in Rice & Asplund in Poisat & Poisat (2014) FLC 93-597 (“Poisat & Poisat”), and noted that the rule or principle emanating from the decision in Rice & Asplund is, it cannot be doubted, firmly entrenched in family law in Australia. In that case, the Full Court discussed the rule in the context of the argument on appeal in that case at paragraphs 39 to 45 and 52 to 54, the details of which are set out below:
“39.As to the submission that her Honour adopted a “two options approach” and that such an approach, if adopted, was “erroneous”, this Court made clear in Miller & Harrington, that the “rule in Rice and Asplund” might be applied either “at a preliminary stage” or at another stage of parenting proceedings (see, for example, [72]). That conceptualisation of the “rule” is entirely consistent with what the High Court said in the unreported decision in Lowe, referred to earlier in these reasons. Mason CJ said (at p 11):
…It may be that in some cases the judge, in order to evaluate how strong the case is in relation to change of circumstances, needs to do little more than read the affidavits. He may need to have the benefit of cross-examination of some of the witnesses in order to evaluate how strong the case for change of circumstances appears to be. It seems to me that each case must be tailored to its own circumstances and an approach worked out which in the mind of the primary judge is best for that particular case.
(Emphasis added).
40.Mason CJ’s approach finds reflection in what Warnick J concluded in SPS & PLS (later approved by this court in both Marsden & Winch (2009) 42 Fam LR 1 and in Langmeil & Grange [2013] FamCAFC 31 at [46])). His Honour said:
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”…
72.…While I have said that the rule needs to be re-formulated if applied at the end of a hearing, and may also carry less force, I do not think that the rule in Rice and Asplund should be cast aside at the end of a hearing to change a previous order, even if the trial Judge has come to the conclusion that on all considerations other than the rule, the best interests of the child require change.
73. There are two matters of public policy that support the application of the threshold question even at the end of a hearing. Namely, that it is important for one judge not simply to substitute his or her conclusion for another judge, unless there has been a change of circumstance sufficient to justify that course. Secondly, albeit the particular litigation has run, if no such rule is even considered, in a general sense litigation will not be discouraged.
…
81.…[W]hen 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.
(Bold emphasis in original).
41.As his Honour’s judgment in that case makes clear, consistent with what Mason CJ said in Lowe, the “rule” can be addressed “as a preliminary matter” which “proves determinative of the application” or applied at “the end of a full hearing”. In either event, the underlying intention is the same and is grounded centrally in the best interests consideration just referred to: the rule’s application recognises the benefit of the finality of litigation but also recognises that considerations acutely relevant to a child’s best interests can change, including, for example, by reference to the child’s age and level of maturity. (See, for example, SPS at [58]-[60]).
42.Crucially, in light of the arguments advanced on behalf of the father, it should be observed that the statements of both Warnick J in SPS and Mason CJ in Lowe, make it clear that while the nature of the hearing undertaken at either stage will have the best interests of the relevant child/ren as its paramount consideration (s 60CA), the hearing by which those best interests is determined may have characteristics which differ with the circumstances of the case.
43.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. Applied at the end of the hearing - because the hearing that precedes it is “a full hearing of a ‘custody’ dispute” (SPS at [65]) - a different question can be asked:
72.While … the rule needs to be re-formulated if applied at the end of a hearing, and may also carry less force, I do not think that the rule in Rice and Asplund should be cast aside at the end of a hearing to change a previous order, even if the trial Judge has come to the conclusion that on all considerations other than the rule, the best interests of the child require change.
73.There are two matters of public policy that support the application of the threshold question even at the end of a hearing. Namely, that it is important for one judge not simply to substitute his or her conclusion for another judge, unless there has been a change of circumstance sufficient to justify that course. Secondly, albeit the particular litigation has run, if no such rule is even considered, in a general sense litigation will not be discouraged.
(Emphasis in original).
44.If the “rule” can be applied, as suggested by Mason CJ, based solely on the affidavit evidence or after “…the benefit of cross-examination of some of the witnesses”, or after a “full hearing”, the application of the rule must, almost axiomatically, involve differing weight being given to factors which inform it. Citing Warnick J in SPS at [81], this Court said in Miller & Harrington:
80.In our view, that passage 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.
81.Nor, as presently advised, do we think that the authorities cited by Warnick J in SPS preclude the possibility that, in a “preliminary” hearing for the purpose of ascertaining if an application for parenting orders should go no further because of the rule in Rice and Asplund, some resolution of factual disputes may occur, for example, whether a change of circumstances has or has not occurred.
82.However, 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.
45.Once it is understood that the “rule in Rice and Asplund” may, but is not required to be, considered as a preliminary issue, then it must be accepted that the weight to be attributed to factors relevant to the application of the “rule” can also vary. As Mason CJ makes plain, “…each case must be tailored to its own circumstances…”.
…
52.Some suggestions made by counsel for the father seemed to imply that the order dismissing the father’s application was a “parenting order” within the meaning of s 64B(1) of the Act. That submission, too, can be answered, in our view, by reference to what was said by Warnick J in SPS:
77.An order simply dismissing an application to vary or discharge an earlier parenting order may not neatly fit within the definition of “Parenting Order” as set out in s 64B, although a variation or discharge of the earlier order would. However, the paramountcy principle still applies to the decision to dismiss an application to vary, because of the terms of s 60CA which are:
Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
78.Authority supports this view. Speaking of the rule in Rice and Asplund, Nygh J with whom Barblett and Fogarty JJ agreed, said in In the Marriage of Newling and Mole (1987) FLC 91-856 at 76,467 [quoted earlier in these reasons]…
(Emphasis in original).
53.The application by the father is an application for a parenting order and, thus, the Act mandates that such matters as are relevant pursuant to s 60CC must be taken into account in determining the relevant child’s best interests.
54.Her Honour did so. However, we have considerable doubts as to whether the order dismissing the father’s application is a “parenting order” as defined in the Act. The (wide) definition in s 64B does not include dismissal of an application. Seen in the context of Part VII as a whole, the omission seems plainly intentional. For example, if an order dismissing an application was a “parenting order” the court would be obliged to apply the presumption in s 61DA and to consider the matters in s 65DAA in circumstances where the court was determining that no parenting order should be made.”
Finally, and most recently, the rule in Rice & Asplund has been considered by the Full Court in Carriel & Lendrum [2015] FamCAFC 43 (“Carriel & Lendrum”). In that case, the issue of whether, when applying the rule in Rice & Asplund, it is necessary to address in detail, or even at all, the factors in s.60CC of the Act arose. The Full Court addressed that issue at paragraphs 49 through to 61, the details of which are set out below:
“49.Ground 2 raises an interesting question, and one that we feel has not been directly answered by a court to date. That question is whether when applying the principle in Rice & Asplund, it is necessary to address in any detail, or even at all, the factors for determining what is in a child's best interests contained in s 60CC of the Act?
50.A prime example of what has been said to date in relation to this question is what Warnick J said in SPS & PLS (at [48(iii)]), namely:
At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the ‘best interests principle’.
51.This was echoed by the Full Court in Miller & Harrington where their Honours said this (at [72]):
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.
52.As can be seen these pronouncements do not provide a direct answer to the question posed above.
53.However, the Full Court in Poisat & Poisat (2014) FLC 93-597 did take the issue one step further in saying at [42], it is readily apparent that…while the nature of the hearing undertaken at either stage will have the best interests of the relevant child/ren as its paramount consideration (s 60CA [of the Act]), the hearing by which those best interests is determined may have characteristics which differ with the circumstances of the case.
54.We consider that that statement fits neatly with what Warnick J also said in SPS & PLS set out above at [30], and with what Nygh J, with whom Barblett and Fogarty JJ agreed, said in the Full Court decision of Newling & Newling; Mole (Applicant) (1987) FLC 91-856 at 76,467:
Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of action estoppel. What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeated applications concerning its custody and access before the Court. …
55.This approach is also consistent with the recent pronouncement by the Full Court in SCVG & KLD (2014) FLC 93-582 to the effect that the nature and extent of the consideration of the mandatory statutory considerations must, of course, depend upon the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings.
56.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 s 60CC of the Act in determining where the best interests of the child might lie.
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.
58.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.”
59.This approach, when the principle in Rice & Asplund is in play, can also perhaps be seen as a product of the related question of whether an order dismissing an application on the basis of the principle in Rice & Asplund is a parenting order or not. If it is a parenting order then the Act requires a consideration of all of the factors that bear upon the best interests of the child. This has been touched on in several cases. For example in SPS & PLS Warnick J said this:
77.An order simply dismissing an application to vary or discharge an earlier parenting order may not neatly fit within the definition of “Parenting Order” as set out in s 64B, although a variation or discharge of the earlier order would. However, the paramountcy principle still applies to the decision to dismiss an application to vary, because of the terms of s 60CA which are:
Child’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
78.Authority supports this view. Speaking of the rule in Rice and Asplund, Nygh J with whom Barblett and Fogarty JJ agreed, said in In the Marriage of Newling and Mole (1987) FLC 91-856 at 76,467 [quoted earlier in these reasons]…
(Emphasis in original)
60.This issue was taken up by the Full Court in Poisat where their Honours said this:
53.The application by the father is an application for a parenting order and, thus, the Act mandates that such matters as are relevant pursuant to s 60CC must be taken into account in determining the relevant child’s best interests.
54.Her Honour did so. However, we have considerable doubts as to whether the order dismissing the father’s application is a “parenting order” as defined in the Act. The (wide) definition in s 64B does not include dismissal of an application. Seen in the context of Part VII as a whole, the omission seems plainly intentional. For example, if an order dismissing an application was a “parenting order” the court would be obliged to apply the presumption in s 61DA and to consider the matters in s 65DAA in circumstances where the court was determining that no parenting order should be made.
61.For our part, we agree with the comments of Warnick J in SPS & PLS and the Full Court in Poisat, and we seriously doubt whether an order dismissing an application such as the mother’s here is a parenting order. We are not able to come to a concluded view though because we have not heard any argument directed to this issue.”
Consideration
In considering this matter, I note that the hearing proceeded on the papers with the assistance of submissions made on behalf of the parties. I have had regard to the material upon which the parties relied and will consider this matter in light of the principles referred to earlier in these reasons.
The principles referred to in those authorities make clear that for the purposes of this application, I should take the mother’s case at its highest. There is a requirement for a prima facie case of changed circumstances to have been established and for this to be a sufficient change of circumstances to justify embarking on a new hearing on what is in the children’s best interests.
The history of litigation in this Court and others between these parties is a long and turbulent one. There has been so much litigation over the years, so much hostility and bitterness and so many difficulties that the question has now been squarely raised by the father, and supported by the Independent Children’s Lawyer, as to whether it is in the children’s best interests for this to continue.
The mother’s concerns and the reasons why she says the June 2013 orders should be changed were set out in her affidavits. The father’s affidavits and the submissions upon which he relied respond to those claims and deal with why the matter had to return to this Court at his initiative, but should nonetheless be dismissed pursuant to the rule in Rice & Asplund.
I have considered the evidence on which the mother relies, noting that it now contains evidence from a psychiatrist in Sydney, Dr V. The affidavit on which the mother relies from Dr V annexes a medicolegal psychiatric report to a solicitor in Sydney who has never been on the record in these proceedings in relation to the mother from February 2014, and then a letter from the same psychiatrist to a Dr W in (omitted) regarding the mother from November 2014.
Along with the documentation attached to her affidavit filed 19 June 2015, in her affidavit filed 11 June 2015 the mother annexed the documents referred to above and also a report from a Children’s Court clinic in January 2014 as well as other medical documents from 2013. The mother’s earlier affidavits filed 20 November 2014 and 13 February 2015 also annexed that material.
The mother’s affidavits claimed repeatedly that the change in circumstances was a different psychiatric opinion on her and that the Children’s Court clinic (which was in a different court) provided a different opinion on her mental health, what should be the arrangements for the children and what she said the children wanted. I note also the claims made in the mother’s affidavit filed on 20 November 2014.[54]
[54] See affidavit filed 20 November 2014.
In Isaac & Isaac [2013] FCCA 136 over the course of 354 paragraphs, the Court explained why the June 2013 orders, made for those reasons, were in the children’s best interests. That decision was not appealed. The issues the mother raises now are many of the same issues raised in those proceedings.
The Department of Health and Human Services’ report provided to this Court in 2014, and referred to in the ex tempore decisions in October 2014[55] and again in February 2015[56] noted the children were stable in the father’s care. The Department of Health and Human Services had no concerns about that continuing. The evidence the mother relies on from Dr V is not definitive or even determinative of what is in the children’s best interests.
[55] Isaac & Isaac (No. 2) [2014] FCCA 3174.
[56] Isaac & Isaac (No. 3)[2015] FCCA 1747.
Counsel for the father asked the Court to apply the rule in Rice & Asplund to stop this matter going in circles. The father’s submission at pages 16 to 18 directly addresses why, even if there was a change of circumstances, that it was not in the best interests of the children for this to be done.
“The orders made by the court on 24 June 2013 have remained workable and appropriate to deal with the subsequent circumstances. The orders envisaged a psychiatric report and the Husband managing the children’s time with the mother. The sole parental responsibility orders and the order restraining her from taking the children to counsellors and the like have been pivotal in containing the Wife’s behavior and her ability to interfere adversely in the children’s lives. The Husband has managed to get the children through the DHS investigation and the Children’s Court proceedings in a safe and secure manner.
It is submitted that there has been no change in circumstance that was not envisaged by the 24 June 2013 orders or that requires those orders to be varied or discharged. In fact it could be argued what happened in November 2013 and subsequently was consistent with the basis of Judge O’Sullivan’s judgment and the mental health assessments of the Wife. It was foreseen in the fabric of the orders made 24 June 2013. It is submitted that reasons for the decision in Miller and Harrington are on our fours with the circumstances of this case.[57]
It is further submitted that even if it was considered that there had been a change in circumstances that warranted revisiting the orders made on 24 June 2013 it is not in the best interests of the children for this to be done. The court here is obliged to consider this question.[58] The judgement of Judge O’Sullivan sets out the experiences of these two boys from separation until they were ordered to live with the Husband. The DHS investigation and the Children’s Court proceedings meant for these boys further police involvement, a change in their living arrangements for some days, interviews with DHS workers including at their home, almost 10 court hearings at the Children’s Court, an assessment by the Children’s Court Clinic, interviews with their own legal representatives, uncertainty, being aware of disputation between their father and mother, attendance on school counsellors, medical appointments or attempted medical appointments, undermining of the father’s care and management of the children and so on. It was clearly more of the same for the children.
In circumstances where the Wife refused to agree to end the Children’s Court proceedings and to bring the matter back to the Federal Circuit Court once DHS had no protective concerns with the children in the care of the Husband this court cannot be confident that these kinds of experiences for the children will end here.
It cannot be in the best interests of these children to have this matter litigated further for the same reasons the court had to bring an end to this kind of behavior by the Wife and its impact on the children in June 2013. There is much authority and social research to support the accepted position that ongoing conflict is harmful to children.[59] It is evident from the findings of and decision of Judge O’Sullivan in his 24 June 2013 judgment that the change of residency was necessary to protect the children from further harm.
The Wife seeks to vary the orders to give her equal shared parental responsibility. This is central to this case. It is submitted that the Wife seeks this to continue her agitation about medical and treatment matters and the Husband contends that her judgment in these matters is unreliable. Given the far reaching nature of this change the court must apply the principles in Rice and Asplund to a greater degree.[60]
[57] Miller & Harrington, supra at [116].
[58] DL & W, supra at [77].
[59] Marsden & Winch, supra at [49].
[60] SPS & PLS, supra at [48]; Marsden & Winch, supra at [47]
…
It is submitted that it could not be clearer that the public policy reasons for the principles in Rice and Asplund apply to this case. These children need to be protected from the emotional harm revisiting this case would cause them
…
Finally, there will be no end to this litigation if the very workable orders made 24 June 2013 are revisited or varied.”
The Independent Children’s Lawyer’s submissions were also particularly emphatic on this issue and having met with the children the day before yesterday’s hearing, he said the June 2013 orders did not need to be changed. To do so, it was submitted, would mean that these children would go back to square one and that was not in the children’s best interests.
The Independent Children’s Lawyer’s position was that proceedings should be dismissed on the basis of the rule in Rice & Asplund. It was submitted that the mother had not made out a sufficient change in circumstances and, in any event, it was not in the children’s best interests for the June 2013 orders to be revisited. Those submissions bring to mind that in In the marriage of: Zabaneh (1986) 11 FLR 167 at 172, it was said, and I quote:
“The issues involved in reconsidering access relate much more directly to the children and their needs, their own attitude and wishes. The Court would not wish to subject the children to the repeated intervention of Court proceedings to the extent that they have to be re-assessed every few months or every year by Court counsellors…”
It was that very concern that was raised squarely by the Independent Children’s Lawyer in submissions before the Court yesterday.
In written and oral submissions before the Court, which I accept, the father through his Counsel noted the events since the June 2013 orders were within contemplation of the June 2013 orders. The June 2013 orders have remained workable and appropriate and the matters raised by the mother are manifestations of the same matters found in Isaac & Isaac [2013] FCCA 136.[61] The father relied on Miller & Harrington [2008] FamCAFC 150 at paragraph 116 for the purposes of that submission which was:
“116 The matters said on behalf of the mother to be changes of circumstances are in fact, in our view, manifestations of the fact that the central matters found by Buckley J – including the antipathy of the children toward their father, the difficulties his Honour anticipated would exist for the children on a change in their residential care, the inability of the mother to promote or foster a relationship between the children and their father and the influence of the mother’s attitudes on the wishes of the children – continue to pertain.”
[61] See father’s submissions page 16 and Miller & Harrington at [116].
In considering the parties’ submissions, the matters in section 60CC of the Act that pertained to determining the children’s best interests in Isaac & Isaac [2013] FCCA 136 still loom large. They have been considered insofar as the parties’ submissions raise them as necessary considerations.
I have also noted that in the father’s submission, and the Independent Children’s Lawyer endorsed this submission, the public policy reasons for the Court to apply the rule in Rice & Asplund apply squarely in this case.
In this case having regard to the reasons in Isaac & Isaac [2013] FCCA 136, the principles for the application of the rule in Rice & Asplund, and even accepting what the mother says about what Dr V says I am not satisfied there are changed circumstances. Nor am I satisfied there is a real likelihood that a change to the June 2013 orders would follow from the changed circumstances that the mother relies on. Even if such a change did follow, I am not satisfied any change would be of such a scope as to warrant the imposition of yet more litigation upon these children.
Conclusion
In conclusion, in the circumstances of this case, including its long litigation history, adopting the language of His Honour Justice Warnick in SPS & PLS (supra), it is more powerfully in the best interests of these children in their particular circumstances to not allow the proceedings to continue.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge O’Sullivan
Date: 9 July 2015
[30] [2007] FMCA 293 at [4]
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