Kaling and Amato

[2015] FCCA 3587

FEDERAL CIRCUIT COURT OF AUSTRALIA

KALING & AMATO [2015] FCCA 3587

Catchwords:
FAMILY LAW – Parenting – Rice & Asplund hearing – change in circumstances established.

Legislation:

Family Law Act 1975, s.13C

Rice & Asplund (1979) FLC 90-725
Knaggs & Lew [2015] FCCA 1146
Pope & Letten [2014] FCCA 2032
Miller & Harrington (2008) FLC 93 – 383
SPS & PLS (2008) FLC 93-363
King & Finnerman (2001) FLC 93-079
Carriel & Lendrum [2015] FamCAFC 43
Langham & Langham (1981) FLC 91-014
In the marriage of McEnerney (1980) FLC 90-866
Marsden & Winch [2009] FamCAFC 152
DL & W [2012] FamCAFC 5

Applicant: MR KALING

Respondent: MS AMATO

File Number: PAC 4880 of 2009

Judgment of: Judge Newbrun

Hearing date: 23 December 2015

Date of Last Submission: 23 December 2015

Delivered at: Parramatta

Delivered on: 23 December 2015

REPRESENTATION

Solicitor appearing for the Applicant: Ms Aslam

Respondent: In person

ORDERS

1. The interim and final orders sought by the mother in her Response filed 19 July 2013 seeking to dismiss the father’s Initiating Application filed 26 June 2013 are dismissed.

2. The interim and final orders sought by the mother in her Response filed 19 July 2013 seeking orders that the orders of the Federal Magistrates Court of Australia made on 9 December 2011 continue without variation be dismissed.

3. Any orders previously sought by the mother seeking to dismiss the father’s Initiating Application filed 26 June 2013 and Amended Initiating Application filed 18 December 2014 are dismissed.

4. Pursuant to section 68L of the Family Law Act 1975, the interests of the child X born (omitted) 2008 shall be independently represented by a lawyer, and the Legal Aid Commission of New South Wales is requested to arrange the appointment of a lawyer to do so.

5. The solicitors for the mother and the father shall forthwith forward to the Legal Aid Commission of New South Wales notice of these orders and copies of the documents filed in the proceedings on behalf of their respective clients.

6. Pursuant to section 62G of the Family Law Act 1975, a Report be prepared for the Court by a Family Consultant nominated by the Manager, Child Dispute Services.

7. The Court appoints 14 October 2016 at 9.30am as a mention of the proceedings following the release of the Family Report.

8. The Court appoints 31 March 2016, 10 am, for an interim hearing relating to parenting orders sought by the father in his Initiating Application filed 26 June 2013 and Amended Initiating Application filed 18 December 2014.  The Court will allow a maximum time of 1.5 hours in relation to such interim hearing.

9. Direct the father to file and serve a consolidated Affidavit to be relied upon by him at the said interim hearing on or before 28 February 2016.

10. Direct the mother to file and serve one consolidated affidavit for the said interim hearing to be filed and served on or before 15 March 2016.

11. The above affidavits are to be no longer than 10 pages each in length.

12. Both parties are to forward a case outline document (by email to [email protected]) consisting of a short chronology and a list of documents to be relied upon no later than two days prior to the said interim hearing. The Court expects the Independent Children’s Lawyer to be present at the proposed interim hearing and fully participate in such hearing.

13. In respect of the said interim hearing, the Court proposes, in addition to the Affidavit of each party to be relied upon at the interim hearing, that the sworn evidence given by the parties at the Rice & Asplund hearing will be considered as evidence at the interim hearing.

IT IS NOTED that publication of this judgment under the pseudonym Kaling & Amato is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4880 of 2009

MR KALING

Applicant

And

MS AMATO

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings relate to the child X born (omitted) 2008.  The parties are now living in Australia. Originally they are from (country omitted).  This was a hearing of a Rice & Asplund (1979) FLC 90-725 threshold issue. The father sought to establish inter alia that there had been a relevant change of circumstance or circumstances since the making of final parenting orders on 9 December 2011, such that the court should proceed to make fresh parenting orders.

2. The mother submitted that the above threshold issue had not been established by the father and sought to maintain the past parenting orders made on 9 December 2011.

3. The court refers to the final parenting orders made by this court on 9 December 2011 by then Federal Magistrate Harman.

   1. All prior parenting orders with respect to the child X born (omitted) 2008 are discharged.

   2. X’s parents shall have equal shared parental responsibility for her.   

   3. X shall live with her mother.

   4. X shall Spend time with her Father:

   a. Each alternate weekend for (sic from) 10am Saturday until 10am the following Monday commencing Saturday 17 December 2011;

   b. From 10am Sunday until 10am Monday on the Father’s Day weekend (and provided that if Mother’s day falls on a weekend when X would be in her Father’s care the time shall for that weekend conclude 10am Sunday).

   c. Such further and/or other periods as are agreed between X’s parents from time to time.

   5. For the purpose of X passing into her father’s care changeovers shall occur at (omitted) Police Station.

   6. For the purpose of X being returned to her mother’ care changeovers shall occur:

   a. If a weekday by X being delivered to her daycare centre/school; and

   b. For all other occasions changeovers shall occur at the (omitted) Police Station.

   7. Both parents shall do all things sign, all documents and give all consents and authorities necessary to record both parents’ details with X’s daycare or school and so that both parents can obtain such information as they desire.

   8. Each parent shall advise the other forthwith and contemporaneous with the event of any significant illness, injury, referral to or attendance to a medical specialist or hospital and each shall give such authority to enable each parent to be fully advised and consulted regarding treatment and to visit X if hospitalised.

   9. Pursuant to section 13C of the Family Law Act 1975 both parents shall forthwith and no later than 31 January 2012 contact the (omitted) Family Relationships Centre for the purpose of attending an intake appointment with a view of Family Dispute Resolution being provided to deal with any issues arising from implementation of these orders and/or to deal with any outstanding issue between the parents regarding the issue of a passport for X and her using that passport to travel overseas with either parent.

   10. All outstanding applications and responses are dismissed and remove all issues from the list of cases awaiting hearing.

4. Prior to 9 December 2011 the father had filed a second Amended Response to Initiating Application on 15 February 2010 in which he sought final parenting orders, not only for time with orders, but also orders in respect of spending time with the children on special days, orders entitling the parties to have telephone contact with the child, both parents being entitled to attend all events involving the child, and passport-related orders relating to either party wishing to travel overseas with the child.

5. Prior to 9 December, the father had also filed, inter alia, a response to imitating application filed 26 August 2011.  In that document he sought final orders including not only time with orders, but also orders in respect to spending time with the child on special days, both parties being entitled to attend all events involving the child including sporting fixtures, extracurricular activities, school functions and passport-related orders entitling a party travelling overseas with a child.

6. At the outset of the Rice & Asplund hearing before this court on 11 May 2015 the Court inquired of the parties the nature of the hearing before the Court on 9 December 2011. 

7. Both parties gave conflicting accounts of what transpired at Court on 9 December 2011. The Court told the parties at the Rice & Asplund hearing that it would, after reserving its judgment on the Rice & Asplund issue, seek to ascertain from the court’s records exactly what transpired in the proceedings on 9 December 2011.  Accordingly, the court has perused the court’s transcript from 9 December 2011. 

8. The father submitted that he had not agreed to the orders being made by the Court on 9 December 2011.  He submitted that the court on that occasion did not provide any reasons for its decision.  He submitted that it was very late in the afternoon, there was supposed to be a hearing, and he wanted to ask questions of the mother but there was no proper hearing.  There is some substance to these submissions by reference to the transcript of the proceedings on that date.

9. Despite the Court’s reference at the outset of the proceedings on 9 December 2011 that it was dealing with the mother’s “application in the case filed in August” (Transcript page 2.2) the Court at the conclusion of the proceedings on 9 December 2011, after it had made final orders, including “otherwise dismissing all outstanding applications and responses” (Transcript page 22.9) revealed to the parties that it had in fact dealt with “everyone’s application and response” (Transcript page 23.1). 

10. The Court on 9 December 2011 stated that it had:

    ...gone through, as I have gone, everyone’s application and response, and that seems to cover everything that was talked about.  (Transcript page 23.1)

11. Yet the said transcript reveals that the court had not adequately raised with the parties all orders sought by the father in his previous Responses, being orders such as orders permitting the parties to attend the child’s school and extracurricular activities.

12. Further, perusing the transcript of the proceedings before the Court on 9 December 2011, it would seem clear that, as far as the Court was concerned, from 3.59pm until the Court was adjourned indefinitely at 4.31pm, it was trying to facilitate an agreement between the parties in open Court, in relation to certain parenting issues by reference to the mother’s Application in a Case filed 12 August 2011. 

13. However, perusing the said transcript it is not clear at all to this Court that the father fully understood during the proceedings on 9 December 2011 that the essential exercise the Court was conducting was merely a facilitation in open Court of negotiations between the parties relating to outstanding parenting issues.

14. For example, as previously stated, towards the end of the proceedings on 9 December 2011 the father asked the Court whether he was going to be able to ask the mother some questions (Transcript page 17.34) The Court stated:

    Probably not.  Not unless it’s about trying to identify differences between what you’re both saying should happen, because I really want to make your orders and let you go home. (Transcript page 17.35).

15. The father then stated:

    Because I wanted to ask her some questions because she’s making lots of allegations.

16. To which the Court replied:

    Well, can I say I haven’t read them, so, to that extent, I’m conscious there may be things you don’t agree with that I haven’t read, so I don’t have it in my mind either to think it’s true, untrue or otherwise.  I have just not read it. (Transcript page 17.45)

17. The Court notes that in relation to a passport issue that Western Australia raised and the child travelling overseas with either parent, the court, on 9 December 2011, ultimately made an order that the parties attend the (omitted) Family Relationship Centre for Family Dispute Resolution.  It was the clear intention of the Court, from the transcript, that if the parties could not reach agreement on the passport issue within the Family Dispute Resolution setting, then they could return to the Court.

18. This Court notes that the father had expressly told the court on 9 December 2011 that he did not believe that such family dispute resolution in relation to the passport issue would be of assistance because he did not believe the mother would agree, due to previous experiences with the mother at mediations, when according to the father she didn’t agree to anything.  Nevertheless, the Court made the order it did in relation to the passport issue, to be dealt with in the first instance within the context of Family Dispute Resolution.

19. Further, it is apparent from the said transcript, that despite the parties agreeing in open court to an order for the parties to have telephone contact with the child, the court, when it proceeded to make its final parenting orders, simply omitted to make any order relating to such telephone contact.

20. This court is of the view that in the above circumstances, the father was probably denied procedural fairness and/or there was a miscarriage of justice, noting that the father’s previous Responses were simply dismissed.

Documents relied upon

1. The father relied upon his brother’s Affidavit filed 6 August 2013, his Affidavit filed 26 June 2013 (which Affidavit in turn referred to previous Affidavits of the father as outlined in paragraph 5) and his Affidavit filed 18 December 2014.

2. The mother relied upon her Affidavits filed 19 July 2013 and 30 January 2015. 

3. Prior to the orders of 9 December 2011 the parties had filed affidavits and Applications and Responses, but no Family Report had been prepared. 

Conduct of the Rice & Asplund hearing

1. The parties were cross-examined and submissions were made to the Court.

2. The issue before this Court was whether the decision in Rice & Asplund was to be applied and cause a dismissal of the father’s Initiating Application filed 26 June 2013 and Amended Initiating Application 18 December 2014 and was heard as a threshold issue.

3. At the hearing of these proceedings the father appeared unrepresented and the mother was legally represented.

Chronology

(omitted) 1981, date of birth, father.

(omitted) 1986, date of birth, mother.

(omitted) 2006, marriage of the parties in (country omitted). 

(omitted) 2008, child X born. 

30 May 2009, parties separated. 

(omitted) 2010, father re-marries. 

(omitted) 2011, father’s new wife arrives in Australia. 

(omitted) 2011, mother re-marries. 

9 December 2011, final orders in Federal Magistrates Court (at that time child aged three years, 11 months).

January 2013, child starts school.

(omitted) 2014, father’s son Y, born.

18 December 2014, father files Amended Initiating Application seeking orders that the prior parenting orders be discharged and the court make fresh parenting orders

The law

1. The law relating to relevant legal principles to be applied when considering whether the threshold issue in Rice & Asplund has been discharged has been helpfully summarised in the judgment of Dunkley  J in Knaggs & Lew delivered on 19 May 2015 as follows:

   28. Early in the jurisprudential history of the Family Court it was recognised that repeat litigation with respect to children was most often not in their best interest and thus Chief Justice Evatt, Senior Justice Pawley and Justice Fogarty held:

   “A Court should have regard to any earlier order and the reasons for that order and the material on which that order was based. A Court should not lightly entertain an application to reverse an earlier custody order. 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.”

   “There should be circumstances which require the Court to consider afresh how the welfare of the child should be best served. Once the Court is satisfied that there is such a factor, then the issue of custody is to be determined in the ordinary way.”

   29. More recently in Miller & Harrington (2008) FLC 93-383 their Honours Justices Warnick, Boland and Murphy held:

   “At whatever stage the rule in Rice v Asplund is applied, the Court is bound to take into account best interests considerations because specific requirements, including legislative requirements, apply.”

   30. Their Honours also refer to an earlier decision in SPS & PLS (2008) FLC 93-363 where his Honour Justice Warnick held:

   “Thus, in my view, when the threshold question described in Rice v Asplund is determined as a preliminary matter, it remains a determination “on the merits”.

   31. In King & Finneran (2001) FLC 93-079 his Honour Justice Collier said:

   “To apply the test in Rice v Asplund is to make an assessment on the material then available to the Court as to whether or not matters raised in that material make it necessary or proper in the best interest of the children, the subject of the litigation to allow further proceedings.”

   32. More recently in Carriel & Lendrum [2015] FamCAFC 43 their Honours Justices Finn, Strickland and Kent held at paragraphs 56 and 57:

   “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.”

   “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.”

2. The court also refers to another helpful summary of relevant legal principles applicable to a Rice & Asplund hearing, as set out in the decision of McGuire J of this Court in Pope & Letten [2014] FCCA 2032 as follows:

   5. In the judgment which gives its name to the relevant principle, parenting orders were made providing for a father to have custody (as it then was) of the children.  Nine months later the mother issued a fresh application seeking orders for the custody of the children.  The judge at first instance favoured the mother’s application and varied the earlier orders.  The father took the matter on appeal whereupon the Full Court at [78,905]-[78,906] found: 

   The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based.  It should not lightly entertain an application to reverse an earlier custody order.  To do so would be to invite endless litigation for change is an ever-present factor in human affairs.  Therefore, the court would need to be satisfied by the applicant that, to quote Barber J, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material …

   6. The courts have noted that it would be normal to expect some change in circumstances of the parents or the children following a contested hearing and with the flux of time.  However, should it eventuate that there existed at the time of the hearing a factor which was not disclosed which would have been material then a further hearing may be warranted.[1]  .

   [1] Langham & Langham (1981) FLC 91-014

   7. Collier J in King & Finneran[2] considered the rationale of the principle thus: 

   [2] [2001] FamCA 344

   The rule in Rice v Asplund is a rule evolved to protect children from involvement in further unnecessary litigation.  To require a court to make a detailed determination of the matters set out in section 68F (now s 60CC) would defeat the purpose of that protection …

   To apply the test in Rice v Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings …

   …to be either significant or substantial is to indicate that a matter is of importance, of consequence, of real worth, of ample or considerable amount, quantity, size etc.  When related to a change in circumstances, this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time or in the usual course of human activity.

   8. The public policy aspect was further noted by Nygh J In the marriage of McEnerney[3]: 

   [3] (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.

   9. The Full Court more recently considered the principle in Marsden & Winch[4] observing: 

   [4] [2009] FamCAFC 152 at [50] and [58]

   …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:

   a. the past circumstances, including the reasons for the decision and the evidence upon which it was based.

   b. whether there is a likelihood of the orders being varied in a significant way, as a result of a new hearing.

   c. 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.

   10. Their Honours proceed to summarise the process as follows: 

   That there be a requirement for the court:

   a. for a prima facie case of changed circumstances to have been established;  and

   b. for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.

   11. This dual consideration in the court was further developed by the Full Court in DL & W[5], where their Honours considered an appeal from a federal magistrate at first instance dismissing a father’s application to re-agitate parenting matters where the federal magistrate had found “significant changes” in circumstances but, on consideration of the potential costs and benefits to the child from a new trial, had dismissed the application.

   12. The Full Court agreed with the federal magistrate at first instance in dismissing the appeal and said: 

   Thus, her ultimate decision to dismiss the father’s application can be seen as squarely resting on her consideration of the second step, which her Honour described as involving “assessment of the potential costs and benefits to [the child] from a new trial about her parenting arrangements”.

   The federal magistrate was right to embark on that assessment, since it was not only permitted but required by authority binding upon her.  We therefore do not accept the submissions advanced on behalf of the father that “once a change in circumstance is established, applications are to be determined in accordance with the legislative pathway set out in Goode & Goode”.  Nor do we accept the associated submission that the federal magistrate was obliged to undertake an assessment of all of the s 60CC factors before arriving at a decision.  We respectfully adopt the view expressed by Collier J in King & Finneran … that to require a court to undertake such an assessment would defeat the entire purpose of the “rule” in Rice & Asplund. 

   [5] [2012] FamCAFC 5

Determination

1. It is relevant to note that the subject child was aged only three years, eleven months at the date of the final orders that this Court made on 9 December 2011. The child is now aged almost eight years and has been attending school since January 2013. 

2. The evidence before the court enables the inference to be drawn that the child has matured and developed since the orders of the Court on 9 December 2011.

3. The Court notes that the parties were unrepresented in the proceedings before the Court on 9 December 2011. 

4. The Court refers to its previous view that the father was probably denied procedural fairness and/or there was a miscarriage of justice.

5. There was no Family Report before the Court on 9 December 2011 or made prior to that date. On 15 February 2010 the Court’s Family Consultant had recommended a Family Report be prepared.

6. A telephone contact order was not made by the Court on 9 December 2011, despite the parties’ apparent agreement before the Court on that date for that to occur. 

7. In the mother’s Affidavit filed 19 July 2013 she stated that she was willing to provide the father with a phone number to contact the child when the child was with the mother and would like to have Court orders in place.

8. This was also reflected in the interim and final orders sought in the mother’s Response filed 19 July 2013.  The father’s evidence confirmed that he does not have a telephone number of the mother.  The mother stated in cross-examination that now that the child was seven years of age she was ready for telephone communication with the father;  the mother suggested the use an of “easy phone”.

9. The father submitted that in the absence of a court order that he be permitted to have telephone contact with the child that he cannot even telephone the child on her birthday.

10. The Court is satisfied that the child’s readiness for telephone communication with the father (the mother’s evidence before this Court) is a relevant change of circumstances.  It would clearly be in the child’s best interests that she have telephone communication on a regular basis with the father.  There is a likelihood of telephone contact orders being made in any new hearing in relation to parenting issues.

11. As to the issue of a passport for the child, noting that the child has never travelled overseas, including to (country omitted), the court orders of 9 December 2011 provided in Order 9 that, pursuant to section 13C of the Family Law Act 1975, both parents shall forthwith and no later than 31 January 2012 contact the (omitted) Family Relationship Centre for the purpose of attending an intake appointment with a view of Family Dispute Resolution being provided to deal with any issues arising from implementation of these orders and/or to deal with any outstanding issue between the parents regarding the issue of a passport for X and her using that passport to travel overseas with either parent.

12. The evidence before the Court was that the father, pursuant to order 9 of the said orders of 9 December 2011, did attend for assessment of Family Dispute Resolution but was advised that Family Dispute Resolution was not appropriate at this time.

13. The father’s evidence included evidence that the child talks to him about going overseas, especially to (country omitted), and seems very unhappy about not being able to travel with the father or the mother.  The father’s evidence included evidence that the child is more mature and questions him as to why she does not have a passport.  The mother in cross-examination stated that the child has also asked her about why she cannot travel overseas.

14. The court is of the view that the child’s desire to travel overseas, in particular to (country omitted), noting the court’s order of 9 December 2011 that the child’s passport issue should ultimately be determined by the Court, represents a relevant change in circumstances. There is a likelihood of passport related orders being made in any new hearing in relation to parenting issues. 

15. In relation to the orders of the court on 9 December 2011 that change-overs occur at the (omitted) Police Station (when Order 6, subclause a), is not applicable), the Court notes the father’s evidence, including evidence that the child now questions why she has to go to a Police Station to meet the father whilst none of her friends go to a Police Station.  In cross-examination the mother stated that in the future changeover could occur at the local McDonald’s restaurant.

16. The Court is of the view that the child’s expressed concern about changeovers occurring at a Police Station, including the mother’s willingness for future changeovers to occur at a place other than a Police Station, constitutes a relevant change in circumstances.  There is a likelihood of changeover orders being made not involving a Police Station in any new hearing in relation to parenting issues.

17. The father’s evidence stated that his new wife Y only arrived in Australia in (omitted) 2011.  He states that she met with the child only a couple of times before the final orders were made on 9 December 2011.  He states that his new wife is more capable and involved with their life, especially now that she has developed a very intimate relationship with the child.  He states that as a family “we all have a better understanding, strong connection and stable relationship” since the orders were made on 9 December 2011.

18. Further, the father’s evidence was that he and his new wife have had a new child, Y, who was born in (omitted) 2014.  He states that the child and his new son enjoy spending time together.  He states the child likes to play, sing and read with Y.  The father states that it would be beneficial for both the child and Y to spend more time together.  In cross-examination the mother stated that she was not opposed to the father seeking to develop a relationship between the child and Y.

19. The Court is of the view that the development of a relationship between the father’s new wife and the child since the Orders of 9 December 2011, including the child’s new relationship with the father’s new son, together with the father’s evidence that it would be beneficial for the child and his new son to spend more time together, constitutes a relevant change in circumstances.  Further, there is a likelihood of the previous parenting orders being varied in a significant way as a result of a new hearing, based upon this relevant change in circumstances, and likely resulting in increased time being spent by the child with the father and his family.

20. The father submits, and the Court accepts, that the Orders of 9 December 2011 do not provide for the father to be able to participate in the child’s school activities and functions, extracurricular activities and spending time with the child during the child’s school holidays. 

21. The father’s evidence was that he had no meaningful involvement in the child’s life such as school, day-to-day activities and had not been able to take the child on a holiday for a few days under the past orders of court.

22. In cross-examination the mother stated that she was agreeable to the father being able to attend the child’s schooling activities and extracurricular activities.  The mother gave evidence that she would now give consideration to the child spending extra time with the father in school holidays, for example, a one week beach holiday.

23. The Court is of the view that the fact that the child is now attending school and that the prior orders of 9 December 2011 do not provide for the father spending time with the child in respect to her school activities and functions, extracurricular activities nor school holidays, and noting the above evidence of the father and the mother in relation to this issue, that this constitutes a relevant change in circumstances.  There is a likelihood of the past orders of the Court being varied in a significant way as a result of a new hearing in these respects.

24. The Court confirms that it is of the view that it would be in the best interests of the child, based upon the evidence before it, that the past orders of the Court be varied and/or additional parenting orders be made in relation to at least telephone contact by the parents with the child, change-overs not at a police station, the father being permitted to participate in the child’s schooling and extra-curricular activities, passport-related orders in respect of the child, including the child travelling overseas with each of the parents, and increased time spent by the father with the child.  The Court is of the view that such varied or additional parenting orders, being likely to be in the best interests of the child, outweigh any possible detriment to the child by further proceedings.

25. The Court is satisfied that each of the above change in circumstances, when considered either individually or cumulatively, is a changed circumstance.  The Rice & Asplund threshold issue has been satisfied by the father. 

26. The Court notes that, even if it is wrong in its view that the father did not receive procedural fairness and/or that there was a miscarriage of justice on 9 December 2011, the court would still find that the father had satisfied the Rice & Asplund threshold issue by reason of the above-discussed changes in circumstances, whether considered individually or cumulatively.

27. It will be necessary for there to be a final hearing to consider exactly what parenting orders will be in the best interests of the child.

28. As a consequence, the mother’s application for the father’s Initiating Applications to be dismissed at this point is not granted.

29. The father should now be permitted to proceed with his Initiating Applications filed 26 June 2013 and Amended Initiating Application filed 18 December 2014. 

30. The court will proceed to make further directions so as to enable the proceedings to be further prepared for final hearing, including an order to enable the preparation of a Family Report, if the parties consider such a Report is necessary. Consideration can also be given as to whether or not an Independent Children’s Lawyer should be appointed and directions made for the making of further Affidavits.  Accordingly the Court makes the following orders and directions.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:  25 February 2016