Lovell and Winter

[2016] FCCA 2679

FEDERAL CIRCUIT COURT OF AUSTRALIA

LOVELL & WINTER [2016] FCCA 2679

Catchwords:
FAMILY LAW − Rice & Asplund application − whether minor change because child commencing school allows reopening of lives with and equal time issues.

Legislation:

Family Law Act 1975 (Cth), s.60CA

Cases cited:

Rice & Asplund (1979) FLC 90-725

SPS & PLS [2008] FamCAFC 16; (2008) FLC 93¶363
Marston & Winch [2009] FamCAFC 152

Applicant: MR LOVELL

Respondent: MS WINTER

File Number: DGC 411 of 2014

Judgment of: Judge Phipps

Hearing date: 11 July 2016

Date of Last Submission: 11 July 2016

Delivered at: Dandenong

Delivered on: 21 October 2016

REPRESENTATION

Counsel for the Applicant: Mr Hancock appearing amicus curiae

Counsel for the Respondent: Ms Hession

Solicitors for the Respondent: Guthrie & Associates

ORDERS

1. The Initiating Application filed 6 April 2016 is dismissed.

2. The Response filed 18 May 2016 is adjourned for mention and directions on 15 December 2016 at 10.00am in the Federal Circuit Court of Australia at Dandenong.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 411 of 2014

MR LOVELL

Applicant

And

MS WINTER

Respondent

REASONS FOR JUDGMENT

1. The father filed an application on 6 April 2016 to have new orders made in relation to the parties’ child X born (omitted) 2011.  Previous orders were made on 28 August 2013.  These orders were made when the child was two.  The child is now five.  The father has alternative proposals in his initiating application.  He proposes an order that the child live with him, or alternatively that the child live with each parent for alternating one-week periods.  The respondent mother has applied to have the application dismissed on the basis that no new circumstances are shown.

2. In Rice & Asplund (1979) FLC 90-725. Evatt CJ said that a court should not lightly entertain an application to change an earlier order. To do so would invite endless litigation (at 78.905). The application of the rule as a preliminary matter is still an application on the merits. SPS & PLS [2008] FamCAFC 16; (2008) FLC 93¶363 at [48].

3. In Marston & Winch [2009] FamCAFC 152 the Full Court said at [46]

   In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.

   However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.[2]

   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.

4. The court must first look to see whether there is a change or changes in the circumstances and if there is whether that change or changes is sufficient to justify a reopening of the case.  I must look at the considerations referred to by the Full Court above in Marston & Winch.

5. The order made on 28 August 2013 provided for the parties to have equal shared parental responsibility for the child and for the child to live with the mother.  The order provided for different regimes of spending time with the father: until April 2014; commencing April 2014 until December 28 2014; from December 2014 until December 2015; then commencing January 2016.

6. Commencing January 2016 the order provides for the child to spend time with the father:

   a)Each alternate weekend from Friday at 3.30pm until Sunday at 5.00pm;

   b)Each alternate Wednesday from 2.30pm until Thursday at midday subject to kindergarten or pre-school times;

   c)On the child’s birthday, if it does not fall on a day which would otherwise be with the father, as agreed between the parties and in default of agreement for four hours from 10.00am to 2.00pm if a weekend and from 3.00pm to 7.00pm if on a weekday;

   d)On Father’s Day weekend, if it is not a weekend he would otherwise be with the father, from 4.00pm Saturday until 4.00pm Sunday;

   e)For 5 nights in each school term holidays;

   f)On a week about basis for the 2016 long summer school holidays with the father having the second week subject to these orders;

   g)From 4.00pm on 24 December until 4.00pm on 25 December in odd numbered years and from 4.00pm on 25 December until 4.00pm on 26 December in even numbered years;

   h)As otherwise agreed in writing.

7. Under the heading “AND THE COURT NOTES” there is the following:

   These Orders are intended to be re-visited by the parties, by mediation first if necessary, when the child is at kindergarten and certainly not less than six months before the child commences school.

8. The father was born on (omitted) 1979 and the mother on (omitted) 1979.  Both are 36.  They met at high school at the age of 15 and commenced living together in about (omitted) 2006.  Prior to that they lived together for about 12 months in 1999 and 2000.  They married on (omitted) 2008 and separated on 1 January 2012.  They remained separated under the one roof until March 2013 when the father left the former matrimonial home following an incident alleged by the mother to be domestic violence which resulted in the police attending and issuing a safety notice.  Following the safety notice the mother obtained an intervention order on 9 October 2013 which remained in place until 9 October 2015.

9. The mother resides with her parents in (omitted).  She is employed as a (occupation omitted) and the grandmother assists with the collection and delivery of the child to kindergarten.  The mother has a boyfriend but does not live with him.  The child attends kindergarten and will commence school next year.  One of the issues between the parties is the school the child should attend.  The mother proposed a school in (omitted) near her home and the father a school in (omitted) near his home and attended by his stepdaughters.  On 1 June 2016 I made an interim order that the mother was authorised to enrol the child for the school year 2017 at the (omitted) Primary School.  The issue of the child’s school after 2017 remains unresolved.  Another issue between the parties is whether the child needs a tonsil operation.

10. The father has remarried and he and his wife have a daughter A aged about 21 months.  His wife’s two daughters aged 12 and 8 live with them.

11. The parties reached agreement on the orders made in August 2013 following the preparation of the family report by Ms M dated 27 May 2013.  That family report records that the father had re-partnered and was now living with his partner Ms F and her two daughters then aged 10 and 5.

12. The family report notes that the father left the matrimonial home on 20 March 2013 following an incident of family violence resulting in a safety notice.  Ms M says that according to the parties the father was charged with unlawful assault following the incident on 20 March 2013.  The parents had agreed on a parenting plan on 1 May 2013 which provided for the child to live with the mother and spend time with the father each alternate Saturday and Sunday from 8.00am/9.00am to 4.00pm and each Wednesday from 4.00pm to 7.00pm.

13. The father’s proposal in his initiating application at that time was that the child spend equal time with each parent and that be three nights with each parent on a continual rotating basis until the commencement of primary school.  Upon the commencement of primary school the father, in the initiating application, proposed alternate weeks with each parent.

14. Ms M says that during interview the father advised he recognised his proposal was not feasible and did not identify an alternative proposal although he saw no obstacle to the child commencing to spend overnight time with him including consecutive overnights.

15. Ms M says that the mother described the father as being controlling and intimidating.

16. In her evaluation Ms M says that from the information provided by each parent the behaviour of the parties was consistent with what the empirical literature has called Conflict Instigated Violence also called Situational or Common Couple Violence.  She says that from the information provided it appears X had not had significant exposure to family violence.

17. Ms M says that that research indicates that for shared care to work parents need effective communication, commitment from both parents to make it work, and confidence of the others parenting capacity.  She goes on to say the parents have a long-standing history of poor communication, compromised ability to solve problems together as well as each making allegations that the other was controlling throughout the relationship.  Ms M says it is difficult to envisage how the parents anticipate being able to make decisions about their son in a collaborative and cooperative manner.  Ms M goes on to make recommendations which are largely reflected in the consent orders.

18. The parties’ affidavits show that the long-standing history of poor communication and compromised ability to solve problems together has continued.  Apart from the question of the child’s living arrangements the parents do not agree on the school the child should attend and do not agree whether a significant medical procedure, the removal of tonsils, is needed.

19. The father argues that there are six changes in circumstances since the order was made.  They are:

    a)The child commences primary school in 2017.  Currently the child is in kindergarten;

    b)The father now has another child, A born on (omitted) 2016.  The child’s mother is the father’s wife;

    c)The father’s daughter from a previous relationship, B, has been living with him since November 2015;

    d)The father remarried in (omitted) 2014;

    e)The father’s occupation has changed from being employed full-time in the city of Melbourne to being self-employed which gives him more flexible hours;

    f)The father will be changing residence in February 2017 from near (omitted) to (omitted) where he has purchased land and is building a new home.

20. Although not relied upon as a change of circumstance the father claims there was a mistake made in August 2013 because that order provides that in 2016 the child spends time with him on alternate Wednesdays while in the year before it was every Wednesday.  In one sense it is immaterial because the order was made and there is no application to change under the slip rule.  The consent order made on 28 August 2013 is in the usual form that there be final parenting orders, by consent, in terms of the minute of consent parenting order signed by the parties and dated 28 August 2013.  The order provides for the minute to be placed on the court file and marked exhibit “A”.  This minute of order is signed by the parties and remains on the Court file.  Its form suggests there was no mistake.  The minute consists of printed proposed final orders with handwritten amendments.  For the year 2016 the word “alternate” in the provision for alternate Wednesdays is handwritten as are the words “subject to Kinder or Preschool times”.  This suggests that the question of every week or alternate week was actively considered and this is in the context of both parties being represented by Counsel.  There is no evidence of a mistake.

21. The first change of circumstances the father relies upon is that the child will commence school in 2017.  Apart from the notation to the order, which I will deal with later, this is not a change of circumstances in the sense that when the orders were made in August 2013 the parties knew that the child would be commencing school at some time, most likely in the year after he turned five, that is in 2017.

22. The second change of circumstances that the father relies upon is that he now has a child.  At the time the orders were made in August 2013 he had re-partnered.  That the father and his partner might have a child is an obvious and likely happening.  I do not consider it is a new circumstance.

23. The third change of circumstances the father relies upon is that his daughter from a previous relationship, B, now resides with him.  She was a child of the father at the time the orders were made and that her living circumstances have changed so that she is now living with the father is not something I consider as a change of circumstances.

24. The fourth change of circumstances the father relies upon is the change in his employment.  He says he is now self-employed and this gives him flexibility.  In the family report he says he has flexibility but apart from that, a change of employment by a parent is a normal incident of life.  The father is engaging in the same class of employment, (omitted).  I do not consider it is a change of circumstances.

25. The fifth change of circumstances the father relies upon is that he is constructing a new house and will shortly be moving.  A change of address is a normal incident of life and on its own is not a change of circumstance.  The new house is not a great distance from his current residence and certainly not sufficient to constitute a change of circumstance.

26. There remains to consider what effect the notation and the fact that the child is commencing school in 2017 should have.  If these are taken as a change of circumstances I do not consider that the second stage of the Rice v Asplund test is satisfied.  I do not consider that it is in the best interests of the child for the question of the child’s living arrangements to be re litigated.

27. The father puts alternative proposals, that the child live with him or that the child spend equal time with each parent.  The circumstances described in the family report which led to the current orders have not changed.  Since the order was made in August 2013 the child has continued to live with the mother.  Nothing in the father’s material suggests that it would be in the child’s best interests to change that primary care arrangement.

28. The family report recommended against equal time because of the relationship between the parties.  That relationship has not changed.

29. The current order for the alternate Wednesdays is 2.30pm on Wednesday to 12.00 noon on Thursday.  This cannot continue once the child commences school in 2017.  The mother’s proposal is that the time should be from after school on the Wednesday until before school on Thursday which, if the orders remain as they are, is the obvious solution.

30. The current order provides for time on a week about basis for the 2016 long summer school holidays.  The obvious solution is to continue this arrangement for subsequent years.

31. The question then is whether these necessary changes combined with the notation justifies a conclusion that it is in the child’s best interests that the whole question of the child’s living arrangements be reopened.  The parties have included a notation that they will revisit the orders.  This is a relevant factor but it cannot be the deciding factor.

32. The Full Court said in Marston & Winch “small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation”. Section 60CA of the Family Law Act 1975 (Cth) requires that the best interests of the child must always be the paramount consideration in determining parenting orders. If it is not in the best interests of the child to revisit the orders then they should not be revisited.

33. The father puts only the two options, that the child live with him or that the child spend equal time with each parent.  Neither is justified.  The question then is should the father be allowed to pursue these claims when the only likely or even possible result is small changes to accommodate the child commencing school.  This accommodation can be done by slight modification of the implementation of the existing order as the mother proposes.

34. Warnick J says the Rice & Asplund principle:

    is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children.

35. There is no change of circumstances which justifies the making of the proposals by the father that child live with him or spend equal time with him.  Warnick J’s statement applies in this case.  Permitting the father to continue with his claims is not in the child’s best interests.

36. The mother’s response is independent of the child’s living arrangements.  The issues in relation to the child’s school after 2017 and the child’s tonsils will have to continue.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date: 21 October 2016