LANE & PARSONS
[2016] FCCA 1056
•5 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LANE & PARSONS | [2016] FCCA 1056 |
| Catchwords: FAMILY LAW – “Best interest” considerations for Father to bring further proceedings to change final parenting orders made by consent in 2013 – application of the principles in Rice & Asplund (1979) FLC 90-725 – whether existing parenting orders ought to be reconsidered – whether there has been a sufficient change in circumstances to justify reopening the parenting proceedings – agreement with the parties to determine the Rice & Asplund issue as a preliminary issue and to do so “on the papers” – even had the Father established the necessary change in circumstances, it would still not be in the best interests of the child to reopen proceedings and commence protracted litigation – Father also confirms that since May 2015 the Mother has largely complied with the 2013 consent orders – import of concession by Father of Mother’s compliance with existing final orders. |
| Legislation: Family Law Act 1975 (Cth), ss.62G, 69ZN |
| Cases cited: Carriel v Lendrum (2015) 53 Fam LR 157 Rice & Asplund (1979) FLC 90-725 SPS & PLS (2008) 217 FLR 164; (2009) 39 Fam LR 295; (2008) FLC 93-363 |
| Applicant: | MR LANE |
| Respondent: | MS PARSONS |
| File Number: | CAC 1538 of 2009 |
| Judgment of: | Judge Neville |
| Hearing date: | 3 November 2015 |
| Date of Last Submission: | 25 November 2015 |
| Delivered at: | Canberra |
| Delivered on: | 5 May 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Irene Pickel, Solicitors, Bowral |
| Solicitors for the Respondent: | Evans Family Lawyers, Canberra |
ORDERS
The Initiating Application, filed 8th May 2015, be dismissed.
There be no Order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Lane & Parsons is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1538 of 2009
| MR LANE |
Applicant
And
| MS PARSONS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a long-running, albeit “stop-start” parenting matter that first began its litigious life in September 2009, when the Mother filed an Initiating Application seeking Orders in relation to now 9 year old X.[1]
[1] A Family Report was released to the parties on 15th December 2009 but which only recorded the agreement then reached between the parties. The Mother has a daughter from a previous relationship, Y, who is aged 8 years.
Final orders were made by consent on 2nd July 2013. In general terms, those Orders provided for an equal time arrangement for X and his parents and an order for equal shared parental responsibility.
On 8th May 2015, the Father filed an Initiating Application (supported by a detailed affidavit) in which he sought Orders, among other things, which included that the child live with him and spend time with the Mother one weekend per month and that in relation to specific issues the Father will have sole parental responsibility.
On 17th September 2015, the Father filed a revised or updated affidavit, although many of the matters contained in it simply repeated matters set out in his earlier affidavit.
In her Response, filed 21st October 2015, the Mother sought that the Father’s Application be dismissed in accordance with the principles first articulated in Rice & Asplund.[2] In support of her Orders, the Mother set out a detailed response to the Father’s range of complaints which, he said, justified – indeed warranted – the previous parenting Orders to be re-visited.
[2] Rice & Asplund (1979) FLC ¶90-725.
With the consent of the parties, Orders were made on 3rd November, which provided that (a) both parties file written submissions (which are set out later in these reasons) according to an agreed time-table and (b) the threshold issue regarding the applicability of principle from Rice & Asplund be determined as a preliminary issue “on the papers”, namely the affidavit material filed and the written submissions.
In my view and accepting that the Court can make no findings, on the Father’s own material as filed, he has not shown either a single event, or a series of events, which taken either singly or collectively would relevantly constitute a “material change in circumstances” to warrant the final orders of July 2013 to be re-visited.
Significantly, as I note below, the matters raised by the Father are more by way of complaint about the Mother’s adherence to the 2013 Orders, and her parenting capacity more generally (which may, in any event, simply be a different emphasis and focus, or “style”, of parenting). Moreover, many of the complaints actually pre-date the 2013 Orders, while others are set out in such general terms as to assist the Court very little.
Of particular significance too is that to allow the Father’s Application to proceed would ensure that the child became embroiled in litigation which would, necessarily, run for quite some time into the future, not least because of the incessant and onerous demands upon the resources of the Court such that a family report would not be available for the better part of some nine months or more, and trial dates would be more than twelve months away – at least. In my view, this very significant consideration of inflicting on the child the burden of (further) lengthy litigation, in the light of the very modest evidence, requires that the Father’s Application not be permitted to proceed.
Accordingly, the Initiating Application, filed 8th May 2015, must be dismissed.
These reasons proceed as follows: (a) summary of the affidavit evidence of the parties; (b) the written submissions of the parties; (c) outline of principle; (d) consideration and disposition.
Summary of Father’s Affidavit Evidence
Before looking at the Father’s affidavits, it is as well to record, briefly, the particulars in the Father’s Notice of Risk Form, filed on 8th May 2015 at the same time as the Initiating Application.
The Father lists as the only alleged “risks” posed by the Mother as relating to (a) the adequacy (at times) of the child’s clothing and some hygiene issues (e.g. lack of teeth cleaning), (b) the child spending some times away from school for no adequate reason, and (c) the Mother’s alleged failure (at times) to support the child’s education (e.g. not encouraging or supervising homework). It should be noted also that these contentions are not said to be always present or even prevalent, but only on specific, identified occasions.
In his first affidavit, filed 8th May 2015, the Father contended as follows, summarily stated.
Generally he said that there have been various difficulties between the parents since the 2013 Orders were made, primarily in relation to some changeovers, the occasional withholding of the child by the Mother, and problems, at times, in communicating with the Mother. In particular, in pars.20, 21 and 41, the Father deposed that (emphasis added):
[20] On many other occasions since the Orders were made [in 2013] and when X has spent time with Ms Parsons, Ms Parsons has either been late in delivering X to me or early, depending on what seems to suit Ms Parsons, and providing me with little notice and at times only hours [sic] notice. As a result, I am unable to make plans for my time with X, or have to cancel plans.
[21] As result of Ms Parsons’s erratic behaviour I am never sure if Ms Parsons is going to be available to have X as provided in the Orders. Unless I hear from Ms Parsons that she is going to collect X after school, I arrange for X’s care by either collecting him myself, having my Mother collect X or arranging for him to go to after-school-care.
[41] Due to Ms Parsons’s erratic adherence to the current Orders, neither X nor I know when and if she will be spending time with X. This has caused problems for me in making appropriate arrangements for X at the last moment and has affected my relationship with my current employer when I have left work early to look after X when Ms Parsons has not turned up as scheduled. When Ms Parsons does have X, it appears that she does not take care of his basic needs such as clothing, hygiene and school work as evidenced in my affidavit. I propose a change to the current Orders to reflect the level of commitment Ms Parsons appears to be capable of and to ensure that X spends school days with me so that his routine and commitment to homework tasks are not interfered with.
The highlighted parts from the Father’s affidavit reveal, in my view, (a) a not insignificant level of generality, (b) a focus by the Father on his concerns rather than necessarily on issues related specifically with the child, and (c) quite concerningly, a particular lack of cogency in the Father’s evidence where, at best he puts a complaint against the Mother on the basis of “it appears that…”
In the Father’s second affidavit, filed 17th September 2015, again summarily stated, he said (among other things) that (at par.12) in 2011, the Mother did not collect the child on 16 April, 12 May, 15 July – 8 August (I confess that this reference was a tad opaque as to its scope and effect), and 14, 21 and 26 August.
Then at pars.14 – 19, the Father listed a number of occasions in December 2011 and January/February 2012 when (he said) the Mother did not collect the child. And at par.21, the Father said that between May 2011 and February 2013, the child spent time with the Mother only each alternate weekend.
At par.22, the Father confirmed that the parties agreed to final Orders by consent in July 2013.
I simply observe here that all matters deposed to prior to the making of those Final Orders should not have been referred to because the Court may, or should, reasonably be able to assume that they were duly considered by both parties prior to making the Final Orders in July 2013. Accordingly, these pre-2013 Orders issues should never have been raised. They were and are irrelevant to the current Application.
At par.23 (and in other places) the Father expressed his “concerns” in the following general terms (emphasis added): “Over the years I have had concerns about Ms Parsons’ care of X and indeed Y.” At pars.23-28, the Father recorded those concerns but which, again, relate to matters that pre-date the 2013 Final Orders; clearly they were concerns of such little moment that otherwise they did not prevent the Father entering into those Final Orders.
The next complaint, after the July 2013 Orders, set out at par.34 refers to an incident in July 2014, which related to pick up and drop off issues for X.
The Father then recorded various communication difficulties with the Mother, which he said occurred on one occasion in October 2014 and another problem on 23rd November 2014.
At par.38, the Father repeated his contention recorded in his earlier affidavit that between the end of November 2014 and May 2015, the child lived primarily with the Father and spent rather more sporadic time with the Mother. Details regarding these claims are set out in pars.39 – 46 which I need not set out here.
At par.49, the Father deposed that since May 2015 (and since the filing of the current Application) the Mother has been “largely complying with the Consent Orders.” (emphasis added) This is a remarkable comment. I suggest that some Judges might be inclined to regard this statement, by itself, as sufficient to defeat the Father’s current Application on the simple basis that the Father has formally conceded that the Mother has largely been complying with the July 2013 Orders. If that be so, on his own evidence, the contention that the Orders do not work, and or that there is no certainty in their operation, is self-evidently incorrect and unsustainable.
The remainder of the Father’s affidavit largely repeats complaints, noted earlier, regarding the Mother’s [alleged] lack of attention to the child’s appropriate clothing, attention (or lack of it) to the child’s hygiene, and issues relating to the child’s attendance at school. In the light of the Father’s very significant concession just referred to, it is unnecessary to detail these matters.
The Mother’s Affidavit Evidence
The Mother’s affidavit (in support of her Response, in which she sought Orders that the current Application be dismissed) was filed on 21st October 2015. Again by way of summary (and without recording each, individual element of it), it noted the following.
First, the Mother recorded (and obviously complained) about the frequency of the Father’s applications (of various kinds) to the Court, which she said occurred (on average) every two years – which she documented. Unsurprisingly, she said that these Applications were disruptive and costly, not least in terms of the time that they involved and required of her to deal with.[3]
[3] She noted that there had been applications of one kind or another in 2010, 2013, and the current proceeding commenced in 2015.
In pars.6 – 20, the Mother responded, largely but not completely paragraph by paragraph, to the Father’s September 2015 affidavit. Among other things, the Mother alleged that the Father was controlling and abusive during the relationship and she seems to infer from her earlier comments about the regularity of litigation initiated by the Father, that this most recent Application is an example of the Father’s attempts to control the Mother.
At par.34, the Mother makes an allegation similar to the Father’s about him not appropriately dressing X. While at par.41, in response to the Father alleging that the Mother had been charged with a DUI offence in 2011, she alleged that the Father had similarly been charged with such an offence in 2013, to which the Father did not refer in his material – assuming that the Mother’s contention is factually accurate.
At par.45, the Mother deposed that X regularly complained about not being given enough food at his Father’s residence. To this the Mother said that she considers such comment to be X’s tendency “to tell fibs” so that he can get something. In the same place, the Mother confirmed that she did homework and reading with X, but fairly conceded that (like many if not most children) it was something of a challenge to get him to complete his homework.
In short, the Mother denied the Father’s contentions and that apart from a “brief period” due to the Father’s [alleged] lack of co-operation, some medical issues of the Mother and her lack of transportation and geographic location at the time, she has complied with the 2013 Final Orders. She concluded that she “did not see any reason for this [her time with X as per the existing Orders] not to continue.”
The Applicant Father’s Submissions
In full those submissions were as follows:
1) The principle as expressed by Evatt CJ and [sic] Rice & Asplund [1979] FLC 90-725 is that “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 … 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.” Evatt CJ went on to say “the Court cannot determine the welfare of the child by applying some sort of estoppel rule.”
2) The principle in Rice & Asplund is a manifestation of the best interest principle. It is based on the premise that ongoing litigation is not in the best interests of the children and the cases dealing with implementation of the principle in Rice & Asplund weigh up the potential harm of litigation compared to the harm of not intervening where there are significant changed circumstances that warrant a review of Orders affecting the child.
3) In the case of Marsden & Winch [2009] FamCAFC 152 [sic] Full Court explained factors for the Court to look at when determining “whether 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” as follows:
(i) “The past circumstances, including the reasons for the decision and the evidence upon which is was based.
(ii) Whether there is a likelihood of Orders being varied in a significant way, as a result of a new hearing.
(iii) 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” (paragraph 50).
4) In the matter of Prewett & Mann [2013] FamCAFC 130 the Full Court of the Family Court applied the principle in Rice & Asplund and the three elements listed in Marsden & Winch and at paragraph 67 determined that there was no error in the trial judges decision because His Honour’s reasons demonstrated that he was “acutely aware that the very reason for the hearing was to consider whether the consequences to the child of further litigation were outweighed by other factors concerned with her best interests. In those circumstances, given the passage of time since the Orders were made, His Honour’s repeated observations to the effect that the child was in a situation which was inimical to her welfare, that the Orders were likely to change in a material way and the other matters upon which his Honour placed weight.
5) In Miller & Harrington [2008] FamCAFC 150 the Full Court of the Family Court explained at paragraphs 72 and 73 “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, that whatever stage the rule in Rice & Asplund is applied, the Court is bound to take into account the best interests considerations and also because specific requirements, including legislative requirements, apply.” The application of the rule occurs within proceedings to which the provisions of division 12A of part VII of the Act applies.
6) Similarly, the Full Court of the Family Court in SPS & PLS [2008] FamCAFC 16 analysed the rule at paragraph 48 to include:
(i) “Its application should remain merely a manifestation of the “best interest principle”.
(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”.
In summary, the Court in SPS & PLS at paragraph 81 said “…when the threshold question described in Rice & 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 … because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstances shown to justify embarking on a hearing. 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”. The Court at paragraph 82 went on to quote Evatt CJ in the case of the marriage of Zabaneh in which she said “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.”
7) The Affidavit material filed in this matter for consideration in determining the threshold issue is the Applicant’s Affidavit affirmed 16 September 2015 (“the Applicant’s Affidavit”) and the Respondent’s Affidavit affirmed 21 October 2015 (the Respondent’s Affidavit”).
8) The first changed circumstance relied upon by the Applicant is the failure of the Respondent to spend time with the child X for extensive periods of time and the consequent disruption to the child X and the growing tension between the parties arising out of that failure. Evidence of this is set out in the Applicant’s Affidavit at paragraphs 35 to 45. In the Respondent’s Affidavit, the Respondent deals with these allegations in paragraphs 26 to 31 in which she addresses the matters raised in the Applicant’s Affidavit at paragraphs 35, 36, 38, 41, 44 and 45. The Respondent does not reply at all to paragraphs 37, 39, 42 and 43 of the Applicant’s Affidavit. For the most part, the Respondent does not refute the assertions of the Applicant.
9) In the case of SCVG & KLD [2009] FMCAfam 708 His Honour Judge Altobelli (then Federal Magistrate Altobelli) at paragraph 16 explained “in a situation where, for all practical purposes, the mother does not contest the factual issues on which the father bases his argument of changed circumstances, the Court is left to accept the factual matters asserted by the father, and then focus on whether those facts amounted to change circumstances. From a factual perspective, therefore, the Court is free to take the father’s case at its highest, and without any relevant doubts as to factual matters asserted. Had the mother put the facts in issue, the case might not have proceeded in a summary fashion, and it might not have been so easy to form a conclusion based on the father’s evidence.”
10) Accordingly, it is submitted that the Respondent does not significantly contest the factual issues raised by the Applicant and, for the purpose of determining the threshold test, it is submitted that this Court accept the factual matters asserted by the Applicant. The Applicant further submits that these facts amount to changed circumstances sufficient to give rise to a need to look at the appropriate Orders for the child and this outweighs any detriment that may arise from re-litigating the matter.
11) The application leading to the Orders made on 2 July 2013 appear to be motivated by similar circumstances of the Respondent not spending time with X. The Orders entered into on that occasion altered the previous Orders made in 2010 and for the Applicant’s part, were entered into on the basis of the Respondent’s undertaking to adhere to those arrangements. (Paragraph 32 of the Applicant’s Affidavit). The Respondent has not adhered to those arrangements and the failure to spend time with X is significant, with the Respondent spending a total of approximately ten nights only with X for a period of almost six months between 23 November 2014 and May 2015 on the Respondent’s Affidavit at paragraph 38. While at paragraph 46 of the Respondent’s Affidavit, the Respondent asserts that she has spent time with X as set out in the Orders, she concedes at paragraph 28 that she failed to adhere to the orders between December 2014 to April 2015 (April 2014 in her Affidavit). It is submitted that the Respondent’s explanations are a matter for testing at the final hearing of this matter, but the concession of failing to spend time with X covering a period of some five months on the Respondent’s evidence, supports the factual basis of the Applicant’s case and his contention that the threshold test in Rice & Asplund has been met.
12) The second significant changed circumstance is the attitude of the Respondent to X and his education. When the first Orders were made in 2010, X was not of school age. When the 2013 Orders were made, X had commenced school and was in kindergarten. The Applicant contends that the Respondent fails to support X in his learning in that she does not do homework with him and there appears to be a history of X being absent from school while in the care of the Respondent to the extent that the school is concerned about these absences. This evidence is set out in paragraphs 53, 59 and 69 of the Applicant’s Affidavit. At paragraph 35 of the Respondent’s Affidavit she admits X’s failure to attend school as set out in paragraph 59 of the Applicant’s Affidavit. She makes no reply at all to the allegations set out in paragraph 53 of the Applicant’s Affidavit. That paragraph also has evidence about absences from school by the Respondent’s daughter, Y. The Court is again invited to accept the factual matters asserted by the Applicant and it is submitted that this is a significant change in circumstances and a significant issue coming within the principles of “the best interests of the child” and warrants a review of the child’s situation and a consideration of the Orders currently sought by the Applicant. It is noted that a subpoena was issued to the school at which X and Y attends and documents have been produced but have not yet been inspected as a question of the Respondent’s objection to that subpoena on the grounds of relevance is still to be determined. It is submitted that the full extent of absences by X and Y, will be revealed in the subpoenaed material. With regard to the issue of homework, the Respondent addresses this issue in paragraphs 44 and 45 of her Affidavit. It is submitted that the Respondent’s explanations in each of those paragraphs is somewhat contradictory and it is unclear whether the Respondent in fact is asserting that she does assist X with his homework or she doesn’t because “it is not due until the Friday” (paragraph 44) or “it can be a battle at times to have him complete it” (paragraph 45).
13) It is submitted by the Applicant that the issue of X’s education is important and that it was not an issue that was evident at the time the previous two Consent Orders were entered into. It is the Applicant’s case, as set out in paragraph 76 of his Affidavit, that X has some difficulties with reading, an assertion not addressed at all by the Respondent in her Affidavit.[4] This is a matter that has only come to light since X progressed through school and, in light of X’s difficulties, it is submitted that the Applicant’s assertions about the Respondent’s attitude to X’s educational needs is a circumstance warranting a review of the present Orders for X.[5]
14) The third area of changed circumstances relied upon by the Applicant can be summarised in terms of general lack of care and judgment in the care of X demonstrated by the Respondent in terms of non-attendance to health and hygiene issues, adequacy of X’s clothing and person on whom the Respondent relies to care for X while she is at work.
15) The Applicant’s evidence with regard to the third area of significant change appears at paragraphs 50, 52, 54, 55, 56, 56, 58, 61 and 74. The Respondent gives no answer at all to paragraphs 50, 54, 56, 58 and 74. It is the Applicant’s submission that the evidence relied upon for this third element of changed circumstances is symptomatic of the Respondent’s less than satisfactory attitude towards her responsibilities as a parent and her inability to provide adequately for the needs of X. The Applicant submits that the circumstances are such that they satisfy the test in Rice & Asplund and in the best interests of X require exploring and a re-litigation of the parenting Orders.
16) It is submitted on behalf of the Applicant that the Orders sought by him in his current application is a truer reflection of the involvement of the Respondent with the child X, particularly during periods when the matter is not under the scrutiny of the Courts. The Applicant submits that the changed circumstances revealed in the Affidavit material satisfies the threshold test and outweighs the potential harm of litigation.
[4] Respectfully, this assertion by the Father is incorrect. Albeit briefly, the Mother referred to X’s homework and reading, with the Mother’s support for it, in par.45 of her responding affidavit.
[5] By way of observation only: the Court should be able to assume that in consenting to and drafting consent orders that reflect the parenting agreement, parents have had some basic insight into the age of their child and what milestones (e.g. starting school, moving to secondary school, etc) are going to be faced in the course of the life of the child and the final parenting orders that were being negotiated at the time.
Also in full, the Respondent Mother’s submissions are as follows:
1) These submissions are made in support of the Respondent mother’s position that the Initiating Application filed on behalf of the Applicant father on 8 May 2015 should be dismissed for failing to meet the threshold test as established in Rice and Asplund (1978) 6 Fam LR 570.
The rule
2) The ‘rule in Rice and Asplund’, arises from the following extract:-
“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”[6].
[6] Rice and Asplund (1978) 6 Fam LR 570, 571.
This formulation of the threshold test has been consistently upheld, being affirmed most recently by the Full Court in 2015[7].
[7] Carriel & Lendrum [2015] FamCAFC 43.
3) The rule may be seen as “a balancing exercise between two objectives: first, protecting children from the effects of ongoing litigation; and secondly, ensuring that where circumstances have changed that may have a bearing upon the best interests of the child, a fresh assessment of those interests is made.”[8]
[8] Middleton, S ‘Time for a change? Shared parenting, variation of Orders and the Rule in Rice and Asplund’ (2006) 40 Federal Law Review 399, 402.
4) The rule is applicable where Orders are the product of either litigation or consent[9]. Final Orders in the current matter were made by consent on 2 July 2013 (‘the 2013 Orders’), confirming the equal shared care arrangement for the subject child, X, born (omitted) 2007, and currently aged seven (7) years. An equal shared care arrangement has been in place since the child was approximately two (2) years old, with final Orders being initially made to this effect on 19 April 2010 (“the 2010 Orders”).
[9] Rice and Asplund (1978) 6 Fam LR 570, 572.
5) The father’s Initiating Application, filed with the Court on 8 May 2015, seeks to alter the ongoing equal shared care arrangement, such that the parental responsibility of the mother would be significantly limited, and the time that she spends with the subject child would be reduced to one weekend per month.
6) To meet the threshold test, the father must demonstrate that there has been a change of circumstance sufficient to justify a further hearing[10]. In doing so, the Court is not required to discretely assess all of the factors contained in s60CC of the Family Law Act 1975 in determining where the child’s best interests might lie[11]. It is proper for the Court to “address the issue of best interests by reference to whether it is in the interests of the child for there to be...further litigation.”[12]
[10] Carriel & Lendrum [2015] FamCAFC 43, 45.
[11] Carriel & Lendrum [2015] FamCAFC 43, 56.
[12] Carriel & Lendrum [2015] FamCAFC 43, 58.
A change of circumstance
7) In developing the rule in Rice and Asplund, Evatt CJ, Pawley SJ and Fogarty J acknowledged that “change is an ever present factor in human affairs”[13]. The change alleged by the Applicant must be sufficient to justify “such a serious step”[14] as the alteration of the Orders currently place. The father’s Affidavit details a significant volume of events which predate the making of the 2013 Orders. These events were properly before the Court prior to the making of those Orders. Events that postdate the making of Orders on 2 July 2013, and which are ostensibly the father’s evidence as to a change in circumstance, are as follows:-
[13] Rice and Asplund (1978) 6 Fam LR 570, 571.
[14] Ibid.
(i) On 13 July 2014, where he alleges that the mother did not comply with changeover time [para. 34];
(ii) On 4 October 2014, where the father overheld the child until 7:00PM by consent, and the child was ultimately returned to the mother the next day [para. 35];
(iii) An undated event in October 2014, when the mother was moving house [para 36];
(iv) An event on 23 November 2014, when the mother went on holiday to Narooma [para 37];
(v) The allegation that the mother only spent time with the child for a total of 10 nights during the period 23 November 2014 until May 2015 [para 38].
8) At para. 33 of his Affidavit, the father states that the parties complied with the 2013 Orders for approximately twelve months, or until July 2014. It is also the father’s evidence that the parties have further adhered to the 2013 Orders largely without incident since May 2015 [para 49].
9) In relation to items 1-4 numbered above, it is the submission of the mother that these events should properly be categorised as evidence of exigencies of daily life, whereby parties occasionally encounter difficulties in strict compliance with Court Orders, whether through miscommunication or unavoidable incidents. They do not point to a change in circumstance, whereby the current Orders can no longer be considered to be serving the best interests of X, or that might otherwise warrant the Court’s further interference in a well established parenting arrangement.
10) In relation to item 5, it is the submission of the mother, as detailed at para.26 of the mother’s Affidavit filed 21 October 2015, the mother did experience difficulty complying with the 2013 Orders, though the period stated by the father is disputed. It is the mother’s evidence that she had a torn rotator cuff, and was unable to drive and otherwise transport X. As the mother was residing a 50 minute drive from the father, without access to public transport, the mother was unable to facilitate collection of the child without support of the father or other persons. This support was not always available to the mother.
11) On the father’s own evidence, this issue has now been resolved for over six (6) months, with the mother finding alternative accommodation in (omitted) proximal to both the children’s school and the father’s residence, and her injury having completely resolved. It is the submission of the mother that, even if the evidence of the father were taken at its highest, though the mother has historically experienced an isolated period of difficulty in complying with the 2013 Orders, the father can demonstrate no change of circumstance, extant at the current time, which would justify disturbing the 2013 Orders.
The need to prevent unnecessary litigation
12) It is a matter relevant to a determination of the best interests of the child that there be stability and certainty in their care arrangements[15]. Both sets of Orders made in this matter have confirmed the equal shared care arrangement that is currently in place. A further Contravention Application was filed by the Father on 3 March 2010, which was subsequently discontinued by him on 19 April 2010.
13) Save for the initial proceedings filed by the mother in 2009, the father has been the Applicant in three of four of the proceedings before the Court, in a period of approximately six years. There have been proceedings on foot for the better part of X’s life. In that time, the equal shared care arrangement has not been disturbed.
14) The Full Court’s decision in Prewett & Mann [2013] FamCAFC 130 considered the impact of continued litigation on the child, and their Honours held at [9] as follows:-
“The rule is a manifestation of the best interest principle and founded on the notion that continuous litigation over a child... is generally not in their interests (Langmeil & Grange [2013] FamCAFC 31).
15) Similarly, it was held in Freeman and Freeman (1986) 11 Fam LR 293 that “[c]ontinuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely... Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being”[16]
16) The care arrangements for X have been the subject of continuous litigation before the Court. The father can demonstrate no current change of circumstance, such that the current Orders for equal shared care fail to meet the needs of X, including the need to spend significant and substantial time with both his mother and sister. In such circumstances, it is the ultimate submission of the mother that the need to protect the child from continuous litigation, as a matter of general principle, must prevail.
17) Consequently, the father’s present Application must fail in that he cannot, on balance, satisfy the Court that he overcame the threshold issues.
[15] Family Law Act 1975 (Cth), s60CC(3)(I).
[16] Freeman and Freeman (1986) 11 Fam LR 293, 297.
Outline of Principle
Although there is significant outline and reference to principle in the helpful submissions of the parties, I note the following from six of many Full Court decisions that deal with the principle first articulated in Rice & Asplund.[17]
[17] Rice & Asplund (1979) FLC ¶90-725.
Firstly, and simply by way of reference only, I note Warnick J’s important decision in SPS & PLS, notably at [48], [49], [56], [58], [61], [65], [74], [78], [81], [82], [83] and [86].[18] Although the paragraphs to which I have referred should be taken to be primary points of reference, I will not and need not set them out from his Honour’s judgment, save for Warnick J’s comments at [48] and [81], which are as follows (emphasis added):[19]
[18] SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295. Warnick J was sitting as the Full Court.
[19] Warnick J’s comments in SPS & PLS were cited with approval by the Full Court (Bryant CJ, Finn & Cronin JJ) in Marsden v Winch (2010) 42 Fam LR 1 at [46] and [47].
[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.
[81] …in my view 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.
In 2008, the Full Court (Warnick, Boland & Murphy JJ) in Miller v Harrington discussed further the principle and application of Rice & Asplund.[20] Among other things, the Court there said, at [72] (emphasis added):
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.
[20] Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654.
Then at [80] and further at [82] - [84], the Full Court noted:
[80] In our view, that passage [at [81] in SPS & PLS] 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.
[82] … 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.
[83] This observation may be behind the approach that either the case of the applicant for parenting orders is, at a preliminary stage, taken at its highest, or the hearing embarked upon is an enquiry into all matters relating to the best interests of the child or children.
[84] On the other hand, there is authority to suggest that these are not the only legitimate procedures….
In Marsden v Winch, the Full Court observed, at [50]:[21]
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.
[21] Marsden v Winch (2010) 42 Fam LR 1.
Then in 2014, a Full Court comprising Strickland, Murphy and Austin JJ delivered judgment in Poisat & Poisat.[22] At [43], their Honours commented on the rule in Rice & Asplund:
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.
[22] Poisat & Poisat (2014) FLC ¶93-597.
Most recently, in Carriel v Lendrum, a differently constituted Full Court (Finn, Strickland and Kent JJ) commented further, and at a little length, on the principle or rule in Rice & Asplund.[23] At [46], their Honours said (emphasis added):
… we are far from persuaded that the hurdles that have to be overcome to found a successful challenge on the basis of the weight afforded to the evidence have been scaled. It has consistently been held that where no error of fact or law is present, disagreement only on matters of weight cannot alone justify appellate interference….
[23] Carriel v Lendrum (2015) 53 Fam LR 157.
After noting, at [51], comments from Miller v Harrington (at [72]), and then, at [53], further comments from Poisat & Poisat (at [42]), at [56], the Full Court said:
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 section 60CC of the Act in determining where the best interests of the child might lie.
Then at [57], their Honours stated (emphasis added):
In a case where the principle in Rice 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 or children 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 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 to embark upon further litigation enquiring as to the child’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
Commenting on the decision then under appeal, the Court said, at [58] (emphasis added):
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.
Most recently, in Walter & Walter, the Full Court (May, Ainslie-Wallace & Murphy JJ) dealt with an appeal in relation to a so-called Rice & Asplund matter. In the course of the disposition of that unsuccessful appeal, by reference to most of the cases to which I have already referred in these reasons, I note briefly the following.
First, at [51] – [57], Ainslie-Wallace J said (May J agreed with her Honour’s reason as well as those of Murphy J):
[51] Where the question of whether a sufficient change in circumstances has occurred is to be determined as a matter preliminary to the hearing of the application, it is accepted that the applicant’s evidence should be taken at its highest.
[52] It was argued for the mother that his Honour erred in finding that she had failed to demonstrate a sufficient change in circumstances to justify re-opening the parenting proceedings.
[53] His Honour concluded at [100] that the facts did not establish “a new and vital change in the circumstances”, and found that it was “obvious” that (omitted) had been anxious for some time and that anxiety had from time to time manifested itself in her refusing to go to school. He went on to offer what he considered to be the reasons for this, including that she had recently commenced high school. He thus found at [111] that the mother’s evidence did not establish a material change of circumstances in the necessary sense.
[54] The bar to appellate intervention where the challenge is to a judge’s fact finding is set high. See Edwards v Noble (1971) 125 CLR 296.
[55] In order to succeed in challenging his Honour’s finding that there had been no change in circumstances, it is necessary to demonstrate that the finding was not open to his Honour on the evidence before him.
[56] Thus it was argued that, had his Honour indeed taken the mother’s evidence at its highest it was not open to him to find that there had been no material change in circumstances. It was further argued that both his Honour’s conclusion that the child had always been anxious, and that her present refusal to attend school was a manifestation of a pre-existing condition and was probably due to her attending a new school, were findings unsupported by the evidence.
[57] His Honour’s finding that the child’s present anxiety and refusal to attend school was unsupported by the evidence. However, it was a conclusion reasonably open to his Honour given the accepted increase in her refusing to attend school and anxiety generally with the beginning of a new school regime. It could not be said that the conclusion was not open to his Honour.
His Honour’s findings clearly accept the parties’ position that (omitted)’s anxiety and school refusal had escalated. The issue for his Honour was whether these circumstances led to the conclusion that there had been a material change in circumstances. His Honour found that they did not. That was a determination open to him and I find no error in his conclusion. This challenge is not made out.
In his consideration of the challenge regarding the trial Court’s assessment of whether there had been a material change in circumstances, Murphy J said, at [83] – [86]:
[83] In any event, while the arguments in support of the contention are framed as challenges to “principles” relating to the rule, they are, in essence, challenges to the weight which his Honour attached to aspects of the evidence.
[84] In my view, the findings made by his Honour were entirely open to him on the evidence and it was entirely open to his Honour to include the matters to which his Honour made reference in reaching a determination that a material change in circumstances was not established.
[85] In that respect, it has been held recently that:
… Plainly a circumstance can only constitute a relevant 'change' if it is a circumstance which was outside or beyond the contemplation or consideration of the parties and the court at the time the original parenting orders were made. Put another way, if the current circumstances were within the contemplation of the parties and were considered by the court at the time the original parenting orders were made, there is no basis upon which they can be said to constitute a change which would justify the prospect of continuing litigation with respect to parenting arrangements, given the adverse effect which uncertainty and unpredictability with respect to parenting arrangements can be assumed to have upon the interests of the child concerned…[24]
[24] CDW v LVE [2015] WASCA 247, at [88] per Martin CJ.
[86] In my view his Honour made no error as asserted on behalf of the mother.
Then, after referring at a little length to Warnick J’s decision in SPS & PLS, at [110] – [116], Murphy J continued (internal citations omitted; emphasis added):
[110] The exercise of those discretions will depend, like all discretionary decisions, on a multiplicity of factors. However, the decisions will include a consideration of the nature and cogency of the evidence as to material change and the nature and extent of the orders sought to be changed. The decisions will also ordinarily involve a consideration of the notorious fact – accepted as such both by authority and by Mr North in his arguments – that continued litigation and the re-agitation of contested issues about children has the potential to cause significant harm to them.
[111] In some cases, those factors, and perhaps others, will persuade a court that further evidence is required before reaching a decision on the Rice & Asplund question. The obtaining of a Family Report in an appropriate case might be an example of such further evidence, although it once again needs to be pointed out that Family Reports do not decide cases; courts do.
[112] However, the court’s decision as to the evidence necessary to decide the application of “the rule in Rice & Asplund” as a preliminary matter also involves the exercise of discretion. The exercise of that discretion will also have as its central question whether it is “more powerfully in the child[ren’s] welfare” to permit the obtaining of the further evidence – and what might be involved for the children in doing so – than to determine the application of the rule as a preliminary matter without that evidence. That can be seen to have particular importance when the evidence sought is a Family Report or the interventions of other experts that involve the participation of the children.
[113] It should also be pointed out (as it was by this Court in Miller & Harrington), that the relevant discretions must now be exercised within the mandatory principles and other provisions contained within Division 12A of the Act. In that respect two of the mandatory principles which must be applied by a court by reference to s 69ZN of the Act bear quotation:
(3) 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.
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
[114] In my view, contrary to the submissions made by Mr North, well settled authority is entirely consistent with his Honour having the power to apply “the rule in Rice & Asplund” as a preliminary matter “… even where the evidence demonstrates a material change since the previous order”.
[115] Secondly, again contrary to Mr North’s submissions, it is in my view not correct to characterise his Honour’s actions or decisions as a failure or refusal to exercise jurisdiction in proceedings for parenting orders properly invoked by the mother. The refusal by his Honour to contemplate the obtaining of a Family Report (or, perhaps, other evidence) so as to inform the rule at a preliminary stage was not a failure of judicial process but a discretionary decision performed within a mandatory statutory context and arrived at by reference to the children’s best interests for reasons which his Honour gave.
[116] It is not established that his Honour erred in law; that he failed to take account of relevant considerations; that he took account of irrelevant considerations or committed any other discretionary error. No error in the exercise of his Honour’s discretion is pleaded nor can any be seen in his Honour’s reasons.
Consideration & Disposition
In the light of (a) the affidavit evidence, (b) the detailed written submissions of the parties, and (c) the outline of principle provided by the parties and as set out by the Court, I note the following.
First, in accordance with authority, I take the Father’s material at its highest. That said, the Court remains in the position where there is much “he said – she said” in the affidavit material regarding each party’s account of certain events and explanations for what was alleged to have happened, or not happened, on each occasion. Therefore, formal findings in any relevant respect are not possible.
Secondly, I note that notwithstanding the range of “complaints” raised by the Father towards the Mother, somewhat surprisingly, there have been no contravention applications made by him since the July 2013 Orders were made. If the parenting situation was a bad or as forlorn as the Father suggests, one might reasonably have expected that there would have been more, or more serious, attempts to record the areas of concern or breach, and likewise to bring to the Mother’s attention in the most serious and formal way her [alleged] transgressions, prior to making the current Application which effectively seeks a primary residence Order. No relevant Applications have been filed since the July 2013 Consent Orders until the current, July 2015 Application.
Thirdly, in my view, even on the Mother’s evidence, there have been some “issues” from time to time in relation to the parenting of the child, and which might reasonably be the basis of complaint by the Father. The Mother explains some of these difficulties, and says that they might properly or reasonably be considered to come within the “exigencies of daily life.”
In terms of application of relevant principle as to whether the matters complained of by the Father constitute a “material change in circumstances”, it is invariably a question of degree. Modest, and even semi-regular, difficulties in parenting, in my view, as a general proposition, do not (without more) constitute a “material change in circumstances” as to warrant a re-visiting of final Orders. Everything must necessarily turn on the facts of each case.
In the present matter, clearly the parents knew of their respective talents as well as foibles at the time they were agreeing to and signing the papers filed that ultimately became the Consent Orders of July 2013. The Orders were duly signed and made.
To state the obvious, the Court (and the parties) expects Orders to be complied with. At the same time, the Court may take judicial notice of the fact that (a) parenting is a sacrificial life (even at the best of times), and (b) there are no “perfect parents”. Accordingly, there is very likely to be, even with the most detailed of Orders and the very best of intentions, the need for the parties (and the Court) to recognise that there are likely to be tensions at times of one kind or another, and the occasional “hiccups” in compliance. As earlier mentioned, it becomes a question of degree regarding the severity and or the regularity of these “hiccups” that warrant, or may require judicial, attention. As I have noted, up until the Father’s current Application, whatever hiccups or issues that have arisen they have not been sufficient – for either party – to warrant or to require the assistance of the Court.
Indeed, in the expression of basal principle in Rice & Asplund, the Full Court said that “change is an ever present factor in human affairs.”[25] What the Court must determine is the relevant degree (and perhaps) the relevant frequency of such change such as to constitute a “material change in circumstances.” Only then, subject to other matters of fact and principle to which I have referred from the authorities cited could or should the Court consider that a matter warrants being re-opened.
[25] See Rice & Asplund 6 Fam LR 570 at p.571.
And even in circumstances, such as here, where there are complaints over a period of time, with some degree of frequency, the Court in any event has to assess whether, even if established, they would warrant putting the parents but particularly the child through the burden and disruption of further litigation.
In all of the circumstances, I make the following determinations.
In my view, the complaints or allegations made by the Father, without more, are insufficient to constitute a “sufficient or material change in circumstances” such as to warrant the matter to be re-opened and Orders made for the child to live primarily with the Father and to spend time with the Mother.
In my view, the nature of the allegations and complaints, while important, relate to matters (as summarised in the Father’s Notice of Risk and amplified in his affidavits) that are relatively modest when considered in the wider scheme of things, namely adequacy of clothing and dental hygiene (at times), child’s attendance at school, and support of the child’s education in relation to completion of homework. A significant number of them pre-date the 2013 Orders. Those matters should not have been included in the material and, as I have said, are not relevant to the determination of a “material change of circumstances” since the July 2013 Final Consent Orders were made. Further, as I have also noted, and contrary to the Father’s submissions which are factually incorrect on this point, the Mother answered the Father’s complaints, including matters in relation to X’s schooling. On these and other matters, the Court remains caught in a conflict of the evidence between the parties which cannot be resolved with any definitive finding in the current circumstances.
In my view, a significant amount of the Father’s material is at a level of generality that is insufficient to warrant the matter being re-litigated. And some of the matters he raised were even less than general; it was, at its highest, something that “appears” to be the case. Claims couched in this way are also far too generalised to warrant the Court intervening again in the parenting of the child.
Of very great significance, in my view, as I noted earlier in these reasons, is the Father’s sworn concession at par.49 of his latest affidavit that at least since May 2015 when the current Application was filed, the Mother has been “largely compliant with the Consent Orders.” This is a very telling concession. Put another way: why should (or would) a Court bother to expend further its scarce public resources to re-litigate a matter when, on the Applicant Father’s own evidence, he confirms that the Mother is largely complying with the 2013 Orders? The concession, in my view, almost amounts to making the Application an abuse of process.
Finally, even if I am wrong in relation to the assessment of the allegations made by the Father, in any event, in my view, it would not be in the child’s best interests to be embroiled again in protracted litigation between his parents. It is a matter for the parents to make the 2013 Orders work in such a way that benefits their son, and that does not include the re-litigation of parenting Orders. If they wish to discuss parenting matters, and have difficulty in doing so, they should seek out an experienced family law mediator and work issues through that process rather than coming back to Court. I leave such matters to the parties and their legal representatives.
Otherwise, I prefer and accept the submissions filed on behalf of the Mother.
For these reasons, the Father’s Application, filed 8th May 2015, must be dismissed. Given that the Mother – in my view, quite generously – sought no Order in relation to costs in the event that the Father’s Application was dismissed, there will be no Order as to costs.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 28 April 2016
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