Jiang & Yip
[2017] FamCA 224
•13 April 2017
FAMILY COURT OF AUSTRALIA
| JIANG & YIP | [2017] FamCA 224 |
| FAMILY LAW – CHILDREN – Final orders – With whom the child shall spend time – Consideration of the rule in Rice & Asplund – Where father sought variation of his time with the child – Where mother opposed – Where father argued that court had to consider best interest of the child – Where no changed circumstances other than the usual course of events – Application dismissed. |
| Family Law Act 1975 (Cth) |
| Field & Nalder (1987) FLC 91-813 | ||
| APPLICANT: | Mr Jiang | |
| RESPONDENT: | Ms Yip |
| FILE NUMBER: | ADC | 5456 | of | 2007 |
| DATE DELIVERED: | 13 April 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 7 April 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Heinrich |
| SOLICITOR FOR THE APPLICANT: | Tessa Hume |
| COUNSEL FOR THE RESPONDENT: | Mr Bowler |
| SOLICITOR FOR THE RESPONDENT: | Douglas Hoskins Legal |
Orders
That the substantive Application filed 2 August 2016 is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jiang & Yip has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 5456 of 2007
| Mr Jiang |
Applicant
And
| Ms Yip |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The parties have been in conflict over the parenting arrangements in respect of B born in 2007 (“the child”).
By Initiating Application filed 2 August 2016, Mr Jiang (“the father”) seeks parenting orders summarised as follows:-
(1)That the child live with the parties on a week about basis;
(2)That the child spend time with each of the parties on Chinese New Year;
(3)That each party be permitted to take the child overseas for a period of two weeks during the Christmas school holidays in alternate years;
(4)That each party be permitted to attend and participate in the child’s schooling and extra-curricular activities;
(5)That the child be enrolled in and withdrawn from extra-curricular activities only with the written agreement of the parties;
(6)That the child shall be in the father’s care for a period of time commencing …and concluding … to celebrate the birthday of the child’s half-sister;
(7)That the child attend at a specific medical surgery and that each party keep the other informed of the child’s attendance at any doctor or specialist appointment and that the other party be invited to attend.
The father also seeks that an order for costs in the Federal Circuit Court on 10 February 2016 be dismissed.
It is conceded that the father’s application in respect of the costs order is misconceived and is not pressed.
By Response filed 6 October 2016, Ms Yip (“the mother”) seeks that the father’s application be dismissed and that he pay her costs of and incidental to the application and hearing.
The gravamen of the mother’s position is that by reference to the principle in Rice & Asplund (1979) FLC 90-725, it is not in the best interests of the child to be further involved in renewed litigation.
Whether the father’s application would be dismissed was dealt with as a preliminary matter.
BACKGROUND
The parties separated in July 2007 and a divorce order was granted on 27 September 2008.
The father commenced the proceedings in 2007. The mother asserts that the Court is now concerned with the fourth application for final orders brought by the father.
It is uncontroversial that a consistent theme in terms of the orders sought is the father’s application that the child spend equal time with each of the parties and that they shall each keep the other informed as to significant issues affecting the child, but in particular in relation to the child’s health, education and extra-curricular activities.
Following a trial, Judge Kelly of the Federal Circuit Court made Orders on 10 November 2009 that ultimately had the father spending time with the child as follows:-
(1)Each alternate weekend from 3.30pm Friday until the commencement of school on Monday;
(2)Each intervening week from 3.30pm Thursday until Friday 3.30pm;
(3)One half of school holidays;
(4)Alternating weeks during the Christmas school holidays;
(5)Orders that provide for the child to spend time with each of the parties on special occasions namely:-
(a)Christmas Eve;
(b)New Year’s Day;
(c)Chinese New Year;
(d)The child’s birthday.
Whilst not specifically ordered, it is clear from Her Honour’s orders that it was intended the parties retain equal shared parental responsibility for the child. Her Honour’s Orders were comprehensive and given that at the date of the order the child was two years of age, Her Honour provided for a graduated increase in time up to the commencement of formal school education.
Provision was made to deal with the child’s medical health and the issue of the child travelling overseas with either party was the subject of restraint save and except with the consent of each party.
The father filed a further application on 7 December 2010 and amended on 20 December 2010. The father was self-represented. He sought to amend the existing order in the following terms:-
1 (c) I want equal share care when [the child] commencing school;
(d)I want to add additional public holidays and/or Chinese cultural/traditional as attached.
The Amended Initiating Application filed on 20 December 2010 included the following further order:-
3I would like to have alternate custody during the holiday season and major holidays. I propose that on Christmas, New Year and Chinese New Year and during other important holidays that we take turns with [the child]. I propose that (for example) [the mother] have [the child] from Christmas Eve in New Year Day. I have [the child] Christmas Day and New Year Eve or vice versa.
In relation to the Chinese cultural and traditional days as sought, the father added Australia Day and Easter Day as occasions for the child to spend time with him.
The father filed a further Application on 13 May 2011 seeking that his time increase from three nights (as it then was) to six nights per fortnight.
Following a trial, her Honour made orders on 7 August 2012 which provided for a modest variation to paragraphs 3 (a), (b) and (c) of the orders of 10 November 2009:-
(1)…such that in the event there is no agreement between the parties then the child shall spend time with the father from 12.00 noon until 4.00 pm on:-
(a)Christmas Eve each year;
(b)1 January each year; and
(c)on the day following Chinese New Year each year.
There were further amendments to the order in respect of the child’s birthday, Australia Day, Easter, the Chinese Festivals and the father’s lunar birthday.
The father brought a further Application on 28 September 2015 which sought orders that the child live alternate weeks with each of the parties; be permitted to travel with the father to Asia during school holidays in 2016 and each alternate year thereafter; to travel with the father to China in 2017 and each alternate year thereafter; and for the child to spend time with the father each year on his half-sister’s birthday.
The mother’s application to dismiss the father’s proceedings was heard by Judge Young on 10 February 2016. His Honour delivered ex-tempore reasons and dismissed the proceedings. His Honour considered that the father was not able to demonstrate a significant change of circumstances which would allow for the 2009 orders, as amended in 2012, to be further considered.
His Honour dealt with the father’s application in relatively short compass. The essence of his Honour’s determination is found in the following paragraphs:-
[8]The submissions made by [the father’s] counsel were essentially that the matters of significance were that the father and his partner have a new baby who is about five months old at the moment. [The father’s] counsel submitted that when the orders in 2012 were made, [the child] was two, he is now eight, and that in itself is a significant change of circumstances.
[9]There might on the surface be some truth to that submission or some substance in that submission, but the fact remains that the Federal Magistrate who made the orders in 2009, when [the child] was two, made orders for increasing time for [the child] to spend with his father up to the time [the child] started school when he was five or thereabouts. Those orders provided for [the child] to spend four nights a fortnight with his father.
[10]In 2012, the father brought another application. That included an application that the child spend equal time with each parent. That was resolved by orders made in 2012 but is unclear whether those orders were made after a trial. The order does not say they were by consent, so I have assumed they were not by consent. The 2009 orders were varied slightly to allow for [the child] to spend some further time with his father, particularly on special days and the like.
His Honour did not consider that the material filed by the father should merit the parenting arrangements being the subject of further litigation.
THE CURRENT APPLICATION
Counsel for the father argues that the orders he seeks are substantive by nature and represent a significant variation of the parenting orders such that the child is to be in the father’s care each year overnight to coincide with the birthday of the child’s half-sister. The father also seeks that the child’s time with him increase from four nights each fortnight to seven nights. There are other more minor variations sought.
The mother’s counsel argues that the Initiating Application filed 28 September 2015 considered by Judge Young sought orders that were virtually identical to the current application:-
(1)[The child] live alternate weeks with each of his parents;
(2)[The child] spend alternate Chinese New Years with each of his parents;
(3)[The child] to be permitted to travel with [the father] during school holidays to Asia in 2016 and in each alternate year thereafter;
(4)[The child] to be permitted to travel with [the mother] to China in 2017 and in each alternate year thereafter;
(5)[The child] to spend time each year on his sister’s birthday;
(6)That the parties communicate in respect of the child’s extra-curricular activities and education.
Other than the application for the child to spend time in the father’s care to celebrate his half-sister’s birthday, it could be said that the substantive orders sought by the father in both the current application and the application heard and determined by His Honour on 10 February 2016 were not dissimilar to the orders that the father sought in 2009, 2010, 2011 and 2012.
The father relies upon his Initiating Application filed 2 August 2016 and the father’s Affidavits filed 2 August 2016 and 23 February 2017.
In his Affidavit filed 23 February 2017, the father sets out the reasons for the orders that he seeks asserting in paragraph 4 that since the orders were made on 10 November 2009 “there has been a significant and substantial change in circumstances prompting my Application to the Court seeking a change to the Final Orders.”
The father lists those changed circumstances summarised as follows:-
(1)The child has a half sibling;
(2)The child is now aged 9. As at the date of the order he was aged 2;
(3)The child is interested in extra-curricular activities;
(4)The father’s circumstances have changed. In 2009 the father worked in hospitality. The father is now a self-employed technician;
(5)The father has stable rental accommodation and is in long-term relationship;
(6)The mother’s circumstances have now changed in that she now works fulltime, whereas the father is self-employed and has flexibility in his work arrangements.
OUTLINE OF ARGUMENT OF FATHER
The father argues that in any application for parenting orders the Court must take into account the child’s best interests in relation to the orders sought. A consideration of the rule or principle from Rice & Asplund is to be determined by taking into account considerations of the child’s best interests.
Specifically, it is asserted that:-
Rice & Asplund does not stand for a rule that before the Court can rehear any parenting issues where there is a final order made previously, the applicant must establish significant change.
It is recognised that whilst the orders currently sought by the father are similar to previous orders sought “there is no cause of action, estoppel or res judicata that can apply to the consideration of an application to vary orders relating to parenting matters”.
It is specifically argued that the rule in Rice & Asplund does not mandate that there must be established a significant change, but rather, all that is required is to consider whether the parenting orders sought are in the child’s best interests.
OUTLINE OF ARGUMENT OF MOTHER
The father’s counsel argues that the current orders sought by the father should not be viewed as against the backdrop of the 2009 orders, but rather, the issue is whether there has been a material change in the child’s circumstances since the order of Judge Young made on 10 February 2016 dismissing the father’s Application filed 28 September 2015.
Counsel for the mother submits that the parties have been engaged in ongoing litigation since 2007, predominantly promoted by the father’s various applications with him seeking orders that were similar to those contained in the dismissed application, the father seeks to circumvent the orders made 10 February 2016 dismissing his application.
If the father was aggrieved by his Honour’s orders, then the appropriate remedy was to appeal rather than file further proceedings five months later.
LEGAL PRINCIPLES INVOLVED
In the decision of Poisat & Poisat [2014] FamCAFC 128 the Court considered whether there was a “rule or principle” that arises from the decision in Rice & Asplund. The father raises a similar argument. The Full Court summarised the position as follows:-
[8]What is now universally described as “the rule” or “the principle” emanating from the decision of this Court in Rice and Asplund is, it cannot be doubted, firmly entrenched in family law in Australia having been referred to and applied in numerous decisions of this Court over the last 25 years (see, for example Langham and Langham (1981) FLC 91-014; Newling and Newling; Mole (Applicant) (1987) FLC 91-856; Bennett and Bennett (1991) FLC 92-191; and, more recently, in Miller & Harrington (2008) FLC 93-383; SPS & PLS (2008) FLC 93-363; Marsden & Winch (2009) 42 Fam LR 1; Langmeil & Grange [2013] FamCAFC 31).
Miller & Harrington is the authority for the proposition that the rule in Rice & Asplund can be considered either as a preliminary issue or during the proceedings, or indeed as a final consideration. In Lowe v Lowe (Unreported, High Court of Australia, Mason CJ, Dawson and Toohey JJ, 6 April 1990) Mason CJ said at page 11:-
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.
As was recorded by the Full Court in Poisat & Poisat:-
[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:
…
Whilst it is axiomatic that the test to be applied is that of the best interests of the child, the focus is the recognition that finality of litigation is likely to represent the child’s best interests other than in circumstances because the threshold question has not been satisfied namely, “assuming the evidence of the applicant is accepted, there is an insufficient change of circumstances shown to justify embarking on a hearing”. (see SPS & PLS as per Warnick J at paragraph 81).
HAS THERE BEEN A CHANGE IN THE CHILD’S CIRCUMSTANCES?
The father argues that the most significant change arises from the efflux of time since the orders of 2009. Save as to some modest variation of the current orders, the father’s clear focus has been to seek an order that the child spend equal time with each of the parties.
The very fact that the father seeks other orders could not be a justification to support renewed litigation. The father cannot pull himself up by his own bootstraps but rather, the Court must consider the circumstances of the child in order to ascertain whether it would be in the child’s best interests to involve him in further litigation.
In King & Finneran (2001) FLC 93-079 at 88,368 Collier J held that the change must be “more than that which would occur by the passage of time or in the usual course of human activity”. At paragraph 62, His Honour held:-
…a cumulative basis for change in circumstances cannot be made simply by weight of numbers of the changes alleged to have occurred.
In Field & Nalder (1987) FLC 91-813 the husband was granted “custody” of the only child of the parties. The wife later remarried and instituted fresh proceedings. The issue under consideration was whether the wife’s change in circumstances amounted to something that was significant and substantial. It was held that the wife’s remarriage, the establishment of a new household and family were circumstances of significant change. The wife had a better ability to cope with the child and to provide a warm and nurturing environment.
In Smythe & Holly & Anor [2007] FamCA 302, the Court considered whether final parenting orders made when a child was six should be revisited on the application of the paternal grandparents three years later. The significant change was that the child had expressed a strong wish to see his father in England as well as her other siblings and extended paternal family.
I consider that the orders of Judge Kelly made on 10 November 2009 gave consideration to the advantage to the child of a graduated increase in time with his father culminating in four nights per fortnight when the child commenced formal school education.
It cannot be said therefore that seven years has passed since the relevant order was made, but rather, the consideration must be as against the child commencing school in 2012.
The essence of the father’s application is more to do with his inability to accept that the Court in 2009, 2010 and 2011 were not prepared to make orders that the child would spend equal time with his parents.
There is nothing put forward by the father that suggests that what has occurred is anything other the usual course of events as expected and anticipated by the various judicial officers that have considered the father’s applications.
DUPLICATIVE PROCEEDINGS
It was argued on behalf of the father that there is no cause of action, estoppel or res judicata that can apply in respect of an application to vary parenting orders. That must be so. In Miller & Harrington the following was said:-
[100]The language of “issue estoppel” or “res judicata” is not appropriate because the judicial determination of what is in the child’s best interests, although bringing the then proceedings to an end, does not dispose “once and for all” of that issue (See s 65D(2) and Newling and Mole (1987) FLC 91-856 at 76,467 per Nygh J; Barblett & Fogarty JJ agreeing).
It is argued on behalf of the mother that the current application is nothing more than a revision of the earlier application determined by Judge Young and may well be viewed as an example of the mischief of allowing further litigation. In State Bank of New South Wales Ltd v Stenhouse Ltd (1997) (Aust Torts Reports 81-423) Giles CJ said:-
That the guiding considerations were:-
Oppression and unfairness to the other party to the litigation and concern for the integrity of the system of the administration of justice.
It must be a relevant consideration that the issues heard and determined by Judge Young are of a similar nature and significance to the orders sought in the current proceedings.
The mother’s counsel highlighted that a consideration of the Initiating Application filed 2 August 2016 reveals that it had been previously filed on 30 June 2016 in the Federal Circuit Court but was withdrawn and filed in the Family Court of Australia. The implication is that the father recognised he was unlikely to achieve a different result in the Federal Circuit Court and considered it strategic to file in this Court.
The decision of Judge Young was not challenged. It is reasonable to interpret His Honour’s decision as considering that as at 10 February 2016, it was not in the child’s best interest to embark upon further litigation.
Accordingly, I consider there is strength in the argument that a threshold consideration must relate to circumstances that have arisen since the Court last considered the father’s application as opposed to some earlier point in time.
CONCLUSION
I have had careful regard to the affidavit material filed in support of the application and the response and given the history of the matter I do not consider that it would be in the best interests of the child to subject him to renewed litigation in the absence of any reason or any circumstances that would justify that course.
I make orders as appear at the commencement of these reasons.
I certify that the preceding fifty seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 13 April 2017
Associate:
Date: 13 April 2017
Key Legal Topics
Areas of Law
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Civil Procedure
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Administrative Law
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Judicial Review
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Standing
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Costs
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Procedural Fairness
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