MANN & PREWETT
[2013] FMCAfam 314
•5 April 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MANN & PREWETT | [2013] FMCAfam 314 |
| FAMILY LAW – Parenting – consideration of the threshold question posed by Rice & Asplund as a preliminary issue – by agreement hearing on basis of submissions – finding as to appropriate change of circumstances – finding as to possibility of significant change to previous orders. |
| Family Law Act 1975, s.60CC |
| Rice and Asplund (1979) FLC 90-725 Freeman and Freeman (1987) FLC 91-857 Miller and Harrington [2008] FamCAFC 150 Marsden v Winch[2009] FamCAFC 152 SPS and PLS [2008] FamCAFC 16 DL & W [2012] FamCAFC 5 Collu & Rinaldo [2010] FamCAFC 53 Mazorski v Albright[2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 AMS and AIF (1999) 24 Fam LR 756 |
| Applicant: | MS MANN |
| Respondent: | MR PREWETT |
| File Number: | SYC 645 of 2008 |
| Judgment of: | Foster FM |
| Hearing date: | 13 March 2013 |
| Date of Last Submission: | 13 March 2013 |
| Delivered at: | Wollongong |
| Delivered on: | 5 April 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Cook |
| Solicitors for the Applicant: | Legal Solutions |
| Counsel for the Respondent: | Mr Schonell |
| Solicitors for the Respondent: | Paul & Paul Lawyers |
ORDERS
That the Response filed on 8 January 2013 be dismissed in so far as it seeks a dismissal of the mother’s application filed on the 21 December 2012.
That the father file and serve an amended response setting out with particularity parenting orders sought by him together with an affidavit in support of thereof within 21 days from this date.
Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the child X born (omitted) 2004 and the Legal Aid Commission of New South Wales is requested to provide such representation. The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 or DX 5 SYDNEY forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.
Leave is granted to the Independent Children’s Lawyer to issue such Subpoena as they consider relevant to the issues before the Court.
Leave is granted to the Independent Children’s Lawyer to have photocopy access to documents produced on Subpoena in these proceedings.
The Independent Children’s Lawyer, being a party to these proceedings in receipt of a grant of Legal Aid, be exempt from fees by reason of Rule 2.04(1) Family Law (Fees) Regulation 2012.
Leave be granted to the Independent Children’s Lawyer to re-list the matter on short notice by communication with the Court in Chambers in appropriate circumstances.
IT IS NOTED that publication of this judgment under the pseudonym Mann & Prewett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 645 of 2008
| MS MANN |
Applicant
And
| MR PREWETT |
Respondent
REASONS FOR JUDGMENT
Proceedings
These are parenting proceedings commenced by the applicant mother by application filed on 21 December 2012.
In that application the mother sought orders that in summary provided for:
a)Orders dated 5 March 2008 be discharged;
b)That the parents have equal shared parental responsibility for the subject child X born on (omitted) 2004;
c)That the child live primarily with the mother;
d)That the child spend time with the father for alternate weekends during school term, defined periods during school holidays, otherwise for special days and various specific issues orders as to mutual notification of information as to the child, a restraint as to non-denigration and telephone communication with each parent.
On 8 March 2013 the mother filed an amended initiating application that sought orders similar to the original application but further orders as to the child attending (omitted) school from term one 2014.
The father in his response filed on 30 January 2013 sought orders that the mother’s application be dismissed and that she pay the father’s costs on an indemnity basis.
These proceedings first came before the court on 29 January 2013. On that date the court ordered the parties to attend a child inclusive conference with a family consultant on 19 February 2013. Proceedings were adjourned for further directions to 22 February 2013.
On 22 February 2013 the court ordered by consent that pending further order the parties do all necessary things to enable the subject child to continue confidential counselling with her school counsellor and that no subpoena issue in relation to that counselling.
The court otherwise with the agreement of the parties ordered that proceedings be adjourned to 13 March 2013 for interim hearing on the Rice and Asplund issue as a threshold determination on submissions. The parties were ordered to file and serve any further updating material by 8 March 2013.
The matter proceeded to hearing on the threshold issue on 13 March 2013 on the agreed basis of submissions only and judgment was reserved to a date to be fixed.
Short Background
The applicant mother is 42 years of age. She presently lives with her current husband in (omitted) in the (omitted) area south of Sydney for seven nights a fortnight and otherwise in rented premises at (omitted) in Sydney’s eastern suburbs.
The mother has a new child of her present marriage who is presently about 12 months of age.
The father is 45 years of age and resides at (omitted) in Sydney’s eastern suburbs. He has re-partnered and has a new child of that relationship.
The subject child X is the only child of the parties’ relationship.
The parties were married on (omitted) 2004 and separated in (omitted) 2005 when the subject child was only seven months of age. Subsequent to separation the child resided primarily with the mother.
In late 2007 the mother relocated her residence to the (omitted) area south of Sydney to be closer to her family who live in the general area.
Litigation History
On the 25 February 2008 interim orders were made on a contested basis by Altobelli FM as follows:
a)The parents have equal shared parental responsibility for the child X, born (omitted) 2004 (“the Child”).
b)The mother Ms Mann is restrained from:
i)Relocating the child to (omitted) or to any other location outside the Eastern Suburbs of Sydney; and
ii)Enrolling or causing or permitting the continued enrolment and attendance of X at any Day Care Centre or pre-school outside the Eastern Suburbs of Sydney; and
the mother is to do all things necessary to implement this order no later than 3 March 2008.
c)In the event the mother elects to reside in (omitted) or otherwise outside the Sydney Metropolitan area, X live with the father in Sydney, and spend time with the mother as follows:
i)Each alternate weekend from 4.00pm on Friday until 11.00am on Monday; with the mother to collect X from the father at the commencement of such weekend and return X to the father at the conclusion of such weekend;
ii)Each Wednesday at 10.00am to Thursday at 5.00pm (at the mother’s election) provided that the mother collect the child from, and return the child to, the father;
iii)On any further periods agreed between the parents from time to time.
d)In the event that the mother elects to return to Sydney and reside in Sydney (“mother’s alternative election”) which election shall be evidenced by the mother relinquishing, or otherwise sub-letting, the premises she presently leases in (omitted) in the (omitted) of New South Wales (or as the parties agree) then the child X, immediately upon the resumption of residence in Sydney, is to spend time with the father on the following basis:
i)During the first week of the fortnight; from 10.00am Thursday until 5.00pm Friday;
ii)During the second week of the fortnight, from 10.00am Thursday until 10.00am on the following Monday; and
iii)For one week during each of the autumn, winter and spring school holidays in 2008 being the first week of such holidays unless the parties otherwise agree;
iv)For two weeks during the summer school holidays in 2008 being the last two weeks unless the parents otherwise agree;
v)Where Father’s Day falls on a weekend where the child is not living with the father, the mother shall cause the child to be delivered to the father at 6.00pm on the Saturday preceding Father’s Day and the father will return the child to the mother at 9.00 am on the following Monday;
vi)If the child’s or the father’s birthday falls on a day when the child is living with the mother, then the father will spend time with the child for a period of up to four (4) hours on that day, such hours to be agreed between the parents, but failing agreement to be from 3.00pm to 7.00pm;
vii)On Mother’s Day the father’s time with the child is suspended from 5.00pm on the day preceding Mother’s Day.
e)The child live with the mother at all other times.
f)Within 14 days of this order the parents do all things necessary to consult an appropriately qualified person to advise them about whether X is developmentally prepared and suitable for pre-school in 2008, and if so for what period each week. If the parents are unable to agree about whether X is ready for pre-school in 2008, they will abide by the recommendations made by the qualified person above, and do all things necessary to implement the same. The father is to pay the costs of X’s attendance at pre-school or day-care as the case may be. The parents are otherwise to share equally in the costs of implementing this order.
g)If the mother resides within the Eastern suburbs of Sydney, in order to give effect to these orders the father is to collect the child at the commencement of time spent with X, and the mother is to collect the child from the father at the conclusion of the time X spends with the father, except where the child is to attend pre-school or day care in accordance with these orders in which case the father is to deliver her to pre-school or day-care as the case may be.
h)The matter be adjourned to 18 June 2008 at 10.00am for a two day final hearing.
Only a week or so later and on 5 March 2008 the parties entered into consent orders as to parenting on a final basis. Those orders in summary provided for:
a)The parties to have equal shared parental responsibility;
b)That the child live with the mother;
c)That the child spend time with the father until 1 June 2009 as follows:
i)from 9.30am Thursday to 3.00pm Friday each alternate week with the mother to deliver the child to the father’s residence and to collect the child from the child’s pre-school;
ii)each other week from 9.30am Thursday to 11.00am Monday with the mother to deliver the child to the father’s residence and the father to return the child to the mother’s residence;
iii)for defined times on the Father’s Day weekend, the child’s birthday, the father’s birthday and the Christmas festive period.
d)That the child spend time with the father from 1 June 2009 to January/February 2010 as follows:
i)from after pre-school Wednesday to 3.00pm Friday every alternate week with the father to collect the child from pre-school and the mother to collect the child from pre-school on Friday;
ii)each other week from 9.30am Thursday to 11.00am Monday with the mother to deliver the child to the father’s residence in Sydney and the father to return the child to the mother’s residence;
iii)otherwise for defined times on the Father’s Day weekend, the child’s birthday, the father’s birthday and the Christmas festive period.
e)That’s the father’s time between June 2009 and January/February 2010 be suspended during pre-school holidays and that the child spend time with the father for the first week of the autumn, winter and spring holidays in 2008 and 2009 and for two weeks as agreed in the summer school holidays in 2008 and 2009 and otherwise on Mother’s Day weekend, the mother’s birthday and specific times during the Christmas festive period;
f)That from the commencement of school in 2010:
i)each alternate week from after-school Thursday to before school Monday, Tuesday if a long weekend, with the father to collect the child from school on Thursday and return the child to school on Monday, or Tuesday if a long weekend;
ii)each other week from after-school Thursday to before school Friday with the father to collect the child from school on Thursday and return the child to school on Friday;
iii)otherwise for defined times during the Christmas festive period the Father’s Day weekend, the child’s birthday and the father’s birthday and for half of the school holiday periods.
g)That the mother be permitted to reside with the child in (omitted) until mid-January 2010 at which time she and the child shall return to live in Sydney;
h)That the mother be restrained from enrolling the child in day care, pre-school or school outside the Eastern suburbs of Sydney, unless otherwise agreed in writing;
i)That the parties do all things necessary to enrol the child in a pre-school in the (omitted) suburbs on Wednesday and Friday of each and every week of preschool term;
j)That the parties do all things necessary to enrol the child at (omitted) School or such other private school as agreed;
k)That the father pay the cost of all pre-school fees and private school fees and school expenses relating to the child;
It is of interest to note that orders made on 5 March 2008 were orders by consent and in their terms required the mother to reside in Sydney from mid-January 2010 once the child commenced formal schooling.
The child is as contemplated by the orders of presently attending (omitted) School at (omitted).
Consent orders were made on the 5 March 2008. The child was 3 years of age.
In April 2009 the mother commenced further parenting proceedings seeking a variation of the previous orders that would facilitate the child residing primarily with her in (omitted).
On 24 September 2009 the mother’s application was summarily dismissed by the court in a judgment delivered by His Honour Justice Fowler in the Family Court of Australia in a detailed consideration of the threshold issues raised by Rice and Asplund (1979) FLC 90-725.
It is of note that when the mother commenced further proceedings in April 2009 and at the time when His Honour on delivered judgement in September 2009 the child had not as yet commenced school as foreshadowed by the earlier consent orders.
The obligation cast upon the mother to relocate her residence to Sydney upon the child commencing formal schooling in early 2010 was considered by Fowler J. commencing at [44] in his reasons for judgment. His Honour said:
“There is no evidence before me which in my view indicates that a performance of the obligation of the mother to comply with the orders to which she consented would not operate to further the child’s best interests. Such compliance would render easier the continued development of the child’s experience with the father and afford him by reason of geographical proximity the opportunity to fulfil his obligations to the child and contribute in the context of his joint parental responsibility in a real and effective way to the child obtaining her maximum potential.”
However the obligation cast upon the mother by reason of the consent orders was to relocate her residence to Sydney. In practical terms she could move to reside anywhere in the greater Sydney metropolitan area.
The current orders provide that during school term the child reside primarily with the mother being for seven nights in each fortnightly cycle and with the father for five nights in each fortnightly cycle.
Current Background
Subsequent to the orders the mother has rented four different properties in Sydney and was recently renting at (omitted) at a rental of $700 per week.
As a consequence of the financial impact of maintaining her home in (omitted) and rented premises in (omitted) the mother has recently moved to the maternal grandmother’s home where she stays whilst in Sydney.
The mother’s present husband is employed by (omitted) in (omitted).
So as to comply with the current orders on Sunday, Monday, Tuesday and Wednesday nights the mother, her new child and X stayed at the rented (omitted) home and now at the maternal grandmother’s home. On Thursday nights the child stays with the father and the mother returns to (omitted) so that her new child can spend time with his father. The mother returns to (omitted) on Monday to collect X from school and on Thursday morning she returns to her home in (omitted) with the father collecting the child from school that day. The mother then collects the child from school on Friday afternoon and returns with the child to (omitted).
The mother complains of the travel burden not only on her but also on the child in maintaining in effect three residences in order that the current orders, particularly as to schooling can be complied with.
The mother further gives evidence as to the child’s complaints in this regard, the father’s lack of engagement in the child’s school activities and the father without consultation enrolling the child in extracurricular activities. The mother asserts that the child is under pressure from the father to excel, is unhappy at school and has expressed wishes to live primarily with the mother.
There is no doubt that the relationship between the parties is one of growing animosity and conflict.
The mother further asserts that in January 2013 the father has shown the child documents relating to these proceedings and the child has confronted the mother asserting that the mother has betrayed the child’s confidences. The mother further asserts that since this incident the child has “disconnected herself from me”.
The child has recently engaged with her school counsellor Ms G and the parties have contemplated having the child engage with a private psychologist for therapeutic intervention.
The mother relied upon an affidavit by Ms R, her treating psychologist, who sets out a detailed history as to the mother in her psychological assessment report dated 25 January 2013. She notes the mother’s moderate to high levels of distress as a consequence of the current circumstances. Ms R noted the mother’s various concerns in relation to the child X and the nature of the relationship between the mother and the father.
The Family Consultant’s Memorandum
On 19 February 2013 the parties and the child then aged eight years eight months attended a child inclusive conference with a family consultant. At that conference the consultant spoke independently with the child and then individually with the mother and then the respondent father and then with both parties together.
The family consultant noted the issues in dispute as being:
a)whether the child can relocate with the mother to live in (omitted) and attend school there,
b)how the child spends time and communicates with each of the parents.
The father asserted that current arrangements were generally working well for the child, describing the child as happy, bubbly and confident. The father expressed concerns that the mother was trying to manipulate outcomes so as to allow the child to relocate her residence to (omitted) by asserting a degree of conflict between them and problems existing for the child.
The mother, noted the family consultant, asserted that the current arrangement was not sustainable and that the child’s emotional and psychological well-being and health were being negatively impacted. The mother further asserted that the father can be controlling and authoritarian in his approach towards the child and at times and emotionally abusive towards the child.
On interview with the child the family consultant noted that the child is aware of each parent’s preference. The child presented as a sensitive caring young girl who is aware of everyone’s feelings. She seemed careful to try and present both parents in an equally favourable light.
The things the child appears to find it difficult in having a number of “homes” and the practical and logistical issues involved in getting from one place to another are:
a)the child’s perception that there is a degree of conflict between the mother and father,
b)the child’s experiences in organising and transferring her belongings between various households in Sydney and between Sydney and (omitted),
c)the geographical distance between Sydney and (omitted),
d)adjusting to the different pattern of care each parent provides,
e)managing the emotional adjustment of moving between her parents and the respective households.
The family consultant observes that there is some suggestion that the child perceives her father to have very high expectations of her and sometimes she finds these expectations difficult to manage meaning that she worries and/or becomes anxious about disappointing her father or letting him down.
The child also expressed some age-appropriate discontent about the impact of her new half brother on her relationship with her mother. No doubt this will also now occur in the father’s household. The child also expressed some difficulties in getting to sleep at night because she starts thinking about “stuff”.
The child confirmed that whilst in her father’s care she has seen a court document that included information about things her mother had said to the father or to the court about things that the child had said to the mother. The child appears, observes the family consultant to have found aspects of what she read upsetting due in part to her feeling like her mother has betrayed her trust. The child expressed positive feelings about her engagement with the school counsellor.
However the family consultant notes that while the child seems to have a basic understanding of the various proposals of each of her parents, initial assessment appears to suggest that her understanding of the emotional impact of any significant change in the circumstances appears relatively immature, due in part to her younger age.
The family consultant noted that issues impeding resolution are as follows:
a)The quality and nature of the post-parental relationship which both parents report has deteriorated/become cooler since the mother’s present application;
b)The geographical distance between the primary residence of the mother and father;
c)The mother’s concerns about the child’s health and well-being;
d)The mother’s position that her current situation is financially and emotionally unsustainable;
e)The father’s concern that the mother’s proposal confines his involvement to largely leisure activities during weekends and holidays and limits his ability to be as involved in the child’s education and school life as he would ideally like to be;
f)That both parents are trying to take into consideration and accommodate the needs of the current partners and another child as well as balance work and family commitments.
The Law
As to the threshold issue the court is required to be satisfied that there has been some changed circumstance or factor that would justify the court again examining substantive parenting orders made in relation to that child and how the welfare of the child should best be served (Rice and Asplund (1979) FLC 90-725).
In Freeman and Freeman (1987) FLC 91-857 Strauss J said at 76,470-71:
Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family. It is financially burdensome. For these and like reasons the court may, in an appropriate case, scrutinise with some care an application such as the one in question here when a party applies for what is, in effect, the reversal of an order made a short time previously. The court may enquire what the facts and circumstances are before it embarks on what might be a lengthy and costly hearing: The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being.
Another important reason for approaching with some care an application to overturn such a recent order is that the proper and orderly administration of the law in the community of which these children are part requires that orders made in this jurisdiction should be not overturned unless sufficiently weighty new facts and circumstances are shown to exist which throw sufficient doubt on the desirability of continuing the custodial arrangements brought about by the order. Each case must depend on its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children.
In Rice and Asplund (1979) FLC 90-725 the leading judgment was given by Evatt CJ, with whom Pawley SJ and Fogarty J expressed their agreement. Having discussed certain authorities Evatt CJ said:
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, (Gilder v. Gilder VSC Barber J. 17 February 1967) 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 ... These are not necessarily matters for preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case (emphasis added).
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way. (emphasis added) The court must apply the principles of sec 64 and weigh up the factors for and against the proposals for each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the court, and the reason for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier court's assessment of the parties or views as to the best interests of the child. These are matters which cannot be determined by any fixed or absolute standard
The court also has had regard to the consideration of the application of the so called “rule” in Rice and Asplund by the Full Court in Miller and Harrington [2008] FamCAFC 150 commencing at [72]:
72. It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
73. The application of the rule occurs within proceedings to which the provisions of Division 12A of Part VII of the Act apply. More specifically, the application of the rule occurs as part of “child-related proceedings” within the meaning of s 69ZM. Accordingly, the court hearing argument as to the application of the rule at a preliminary stage is bound to apply the provisions of Division 12A of the Act.
74. Included among the mandatory requirements upon a court are: the obligations to (as seen) “decide which of the issues in the proceedings require full investigation and which may be disposed of summarily” (s 69ZQ (1)(a)) and to “deal with as many aspects of the matter as it can on a single occasion” (s 69ZQ(1)(g)).
75. The provisions of s 69ZR (1), empower the court to “make a finding of fact in relation to the proceedings”, to “determine a matter arising out of the proceedings” and to “make an order in relation to an issue arising out of the proceedings” if the court considers that “it may assist in the determination of the proceedings”. The section goes on to provide (s 69ZR(2)) that the court may do any of the matters mentioned “... at the same time as making final orders”.
76. The terms of s 69ZN of the Act, which set out the “principles for conducting child-related proceedings” also apply to a hearing in which the rule in Rice and Asplund is applied at a preliminary stage. In particular, s 69ZN(3) and (5) provide:
(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.
...
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned against family violence, child abuse and child neglect; and
(b) the parties to the proceedings against family violence.
77. In SPS and PLS [2008] FamCAFC 16 Warnick J said:
“... in strict logic, if a judge is unable to determine on the papers if a change of circumstances, sufficient to embark on a fresh hearing of a parenting issue exists, then what the judge should embark upon is a hearing directed to that question, not one directed to “how the welfare of the children should best be served”..
However, ellipsis in logic or not, subsequent authority has clearly reiterated that if the rule is not applied as a preliminary matter, then the hearing that follows is a full hearing of the “custody dispute”.
78. Warnick J goes on to say:
“... In reality, the facts that relate to the best interests of children per se and to the determination of such questions as whether there has been a change of circumstances of sufficient magnitude to justify a fresh consideration of parenting arrangements are likely to be identical or at least intertwined and to the extent that the facts are otherwise, they may well not be susceptible of identification or assessment for weight until all of the evidence bearing upon factors that relate to a child’s best interests are before a court. The nature of the hearing that follows if the Rice v Asplund rule is not applied as a preliminary matter, as described by authority, may well be the wise and practical choice.”
79. Later, His Honour says:
“Thus, 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 the 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, about the interests of the child in not being subjected to further litigation, is more powerfully in the child’s welfare, than to allow the application to continue.”
80.In our view, that passage need not be taken as saying that the only way in which the rule in Rice and Asplund can be applied at a preliminary stage is on the basis that the case of the applicant for parenting orders is taken at its highest.
81.Nor, as presently advised, do we think that the authorities cited by Warnick J in SPS preclude the possibility that, in a “preliminary” hearing for the purpose of ascertaining if an application for parenting orders should go no further because of the rule in Rice and Asplund, some resolution of factual disputes may occur, for example, whether a change of circumstances has or has not occurred.
82.However, the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.
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.
In Marsden v Winch[2009] FamCAFC 152 the Full Court agreed with the observation of Warnick J in SPS and PLS [2008] FamCAFC 16 that the application of the rule in Rice and Asplund is closely connected with the nature and degree of change sought to the earlier order.
As the Full Court recently observed in DL & W [2012] FamCAFC 5:
67. The legislation itself now expressly directs judicial officers to have regard to the potential impact of proceedings on the welfare of children. As the Full Court pointed out in Miller & Harrington (2008) FLC 93-383, the provisions of 69ZN of the Act, which prescribes “principles for conducting child-related proceedings”, apply to a hearing in whichRice and Asplund is invoked. Subsection 69ZN(3) provides (our emphasis):
The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
68. There are, of course, cases where it is necessary, in the interests of the child, for a court to revisit “final orders”, whether made by consent or following a defended hearing. As Evatt CJ said in Zabaneh and Zabaneh [1986] FamCA 18; (Fogarty and Renaud JJ agreeing):
The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account.
69. ……theRice and Asplund authorities were reviewed in SPS and PLS, where Warnick J recognised that the purposes that can be served by the “rule” differ depending upon the stage of the proceedings at which it is sought to be applied. For example, in the event it is addressed as a preliminary matter it is clearly more effective in discouraging “endless litigation” than if it is applied at the conclusion of the hearing.
70. Warnick J observed (at 87,451) that “at whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the ‘best interests principle’”. His Honour also recognised that “the application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order”. We respectfully adopt those observations, with the latter being of particular importance in the determination of this appeal.
71. Warnick J’s views were also endorsed by the Full Court in Marsden v Winch), where Bryant CJ, Finn and Cronin JJ went on to say:
48. In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
49. However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” inRice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.
50. Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3) If there is such likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
72. Their Honours continued:
55. Given that the application of the rule should always remain a manifestation of the best interests principle, we do not think that that principle can be given its full weight by restricting the application of the rule inRice and Asplund to two choices, either application of the rule by taking the applicant’s case at its highest, or a full hearing.
56. In our view, depending upon the facts of each case, a broader range of processes should always be considered. This is because the decision is one which must be made in the best interests of the child but may also be because of the need to provide procedural fairness in the manner in which the court determines how the rule will be applied. ...
73. The Full Court then described a two step process to be followed when theRice and Asplund “rule” is invoked. Their Honours said:
58. ...there is a requirement:
(1) for a prima facie case of changed circumstances to have been established; and
(2) for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.”
Discussion
Apart from the issues identified in the family consultant’s memorandum above and the issues canvassed by the parties in their respective affidavits, the factual resolution of which remain to be tested, it is difficult for the court to ignore the circumstance that the child does, as contemplated by the orders, reside during school term primarily with the mother.
The obligation somewhat unusually cast upon her by the consent order was to relocate not only the child’s residence but her residence to Sydney commencing in early 2010. The extent to which the mother has complied with this obligation is problematic.
Her position is that she simply now cannot afford to maintain two places of primary residence, one in respect of which she and her partner have mortgage obligations and the other she previously had paid rent on until more recently moving to her mother’s premises which she asserts are inappropriate for the long-term accommodation of herself and the child if she is obliged to live in Sydney for part or indeed all of the school week.
It is clear that the subject child needs to have a primary residence so as to either continue her attendance at school in Sydney as initially contemplated by the parties in the current orders and in that circumstance perhaps live primarily with the father or the mother be permitted to relocate the residence and schooling of the child to the (omitted) area.
The overarching consideration as to whether the court should permit a re-litigation of the issue of primary residence falls to be determined by reference to the best interest considerations set out in s.60CC of the Act.
Best Interests
As the Full Court preferred in Collu & Rinaldo [2010] FamCAFC 53 as the court turns to look at the best interests considerations set out in s.60CC it should firstly consider the additional considerations.
The Additional Considerations
Section 60CC(3):
a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
Both parties to some extent give evidence as to their perceptions as to the child’s views. However, as observed by the family consultant, initial assessment appears to suggest that the child’s understanding of the emotional impact on her of any significant change in her circumstances appears relatively immature, due in part to her young age. The court affords little weight to this factor.
b)the nature of the relationship of the child with:
i)each of the child's parents; and
ii)other persons (including any grandparent or other relative of the child);
It is clear that the child has well formed relationships with both parents. It is regrettable that those relationships are overshadowed by the present parental conflict generated by their respective views as to the appropriateness of the child’s circumstances.
The child spends during school term a majority of her time with the mother but substantial and significant time with the father. The child is of an age that regular and frequent contact such as may be appropriate for a child of tender years is not necessary to facilitate the maintenance of the parent-child relationship.
The child’s relationship with the mother has been disrupted to some extent by the father permitting the child to become enmeshed in the current proceedings by facilitating or otherwise inadvertently allowing the child not only to see but to read the content of documents relating to these proceedings.
c)the extent to which each of the child's parents has taken, or failed to take, the opportunity;
i)to participate in making decisions about major long-term issues in relation to the child; and
ii)to spend time with the child; and
iii)to communicate with the child;
Whilst the mother makes some criticism of the father in this regard in particular in terms of his day-to-day involvement in the child’s schooling and other activities it is clear that both parties have taken the opportunity available to them as contemplated by this factor.
ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child:
There is no particular evidence before the court in relation to this factor such that a consideration of it is of no assistance in the present determination.
d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from;
i)either of his or her parents; or
ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
In the context of the present application this factor looms large. The mother is seeking to relocate her residence and the child’s residence to the (omitted) with the child to attend school in that area. The reasons for such application are referred to above. The effect of the mother’s application would be to provide to the child a primary residence as distinct from the present fractured circumstance the child finds herself in by reason of the mother’s compliance (or partial compliance) with her obligations under the present orders.
Clearly this would impact upon the father’s time with the child but only as to mid-week time currently provided for in the orders.
The father’s present proposal is that the mother’s application be dismissed and that the mother be required in her present circumstances to seek to comply with her obligations under the orders and the child’s continuing attendance at school in Sydney.
The effect of the father’s proposal is to expose the child to the continuing conflict between himself and the mother, a conflict of which the child is all too aware. The mother exhibits distress as to her current circumstances as to accommodation and travel and is clearly concerned as to her relationship with the child by reason of the child whilst in the father’s care becoming enmeshed in these proceedings.
The present circumstance needs to be resolved one way or the other. If the mother is not able to relocate her residence to the (omitted) with the child then the alternative may be that the child live primarily with the father in Sydney and spend time with the mother as she would have the child spend with the father should the child be living with her.
In any event the current position needs resolution.
Either way it is probable that the present orders will be varied in a significant way.
This factor clearly favours the mother’s application proceeding.
e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The physical circumstances in which the mother finds herself in complying to some extent with obligations under the orders as to residence in Sydney, the cost to her of compliance both financially and emotionally and the impact of these factors on her relationship with the child and indeed the father requires the present circumstance to be resolved.
The practical difficulty and expense in fact is a result of the present obligations cast upon the mother by reason of the present orders that were made well prior to the child commencing formal schooling, by consent without judicial determination and probably with little foresight as to the issues that have subsequently arisen.
f) the capacity of:
i)each of the child's parents; and
ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
Both parties raise issues in this regard. However this is a factor of little weight in terms of the present application and if appropriate will await a fuller determination.
g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
This factor is only relevant in the context of the family consultant’s observations as to the child’s understanding of the emotional impact on the of any significant change in her circumstances as noted above and as such has little relevance in the present determination.
h) if the child is an Aboriginal child or a Torres Strait Islander child:
i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
ii)the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration.
i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
Some of the factors previously considered touch upon this issue.
j) any family violence involving the child or a member of the child's family;
This factor is not applicable.
k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
i)the nature of the order;
ii)the circumstances in which the order was made;
iii)any evidence admitted in proceedings for the order;
iv)any findings made by the court in, or in proceedings for, the order;
v)any other relevant matter;
This factor is not applicable.
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
This factor is not applicable by reason of the discrete issue for determination by the court.
m) any other fact or circumstance that the court thinks is relevant.
There is no other fact or circumstance that the court considers relevant.
The Primary Considerations: s.60CC(2)
The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski v Albright[2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
Presently the child’s relationship with each parent is clouded by the underlying conflict between them and the unresolved issue as to the child’s primary residence in circumstances where the parties in reality reside some distance apart.
Such a circumstance cannot be conducive to the child having a meaningful relationship with her parents in that those relationships are important, significant and valuable to the child.
In all probability the child is uncertain as to her primary residence arrangements, spending part of the fortnight with her father in Sydney, part of the fortnight with her mother in the (omitted) and part of the fortnight with her mother in various accommodations historically in Sydney. The child also was exposed to the rigours of travel between the (omitted) and Sydney on an all too regular basis by reason of the operation of the present orders. The physical impact of this on the child and the mother’s household is clear from the mother’s affidavit.
A consideration of this factor is clearly indicative of a further determination being appropriate so as to avoid the present most unsatisfactory arrangements continuing.
Section 60CC(2)(b) – need to protect
The need to protect the child from physical or psychological harm looms significant in the context of the present proceedings. By reason of the family consultant’s memorandum it is clear that the child is struggling in the context of the present dispute.
For reasons that are not yet clear the child has engaged with her school counsellor and it would be surprising to find that the present dispute was not one of the main considerations for the child doing so. This may become clearer in due course.
However to allow the present position to remain unresolved places the child in a circumstance where she is caught between the wishes and desires of each of her parents as to residence and schooling arrangements and in the parental conflict that has developed.
A final resolution of the issue may well see one or indeed both parents not realise the orders that in all probability would be sought by each of them. However the child would have finality with orders being made in circumstances where she is now at school and is entitled to have the dispute between her parents resolved once and for all.
Discussion
In determining the outcome of parenting matters the court must consider the best interests of the child as the paramount consideration.
Whilst that is the paramount consideration it is not the only consideration. In AMS and AIF (1999) 24 Fam LR 756 His Honour Justice Kirby said:
“[144] ……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.”
The court is conscious of the deteriorating relationship between the mother and father in respect to which it is clear from the family consultant’s memorandum has enmeshed the child.
More importantly the obligation cast upon the mother in the present orders to relocate her residence Sydney was entered into well prior to the child commencing formal schooling, shortly after the mother met her current husband, well prior to the mother’s marriage to her present husband and well prior to the child of that relationship W, X’s half sibling, being born on (omitted) 2012.
Indeed in the father’s household X now has a new half sibling born most recently.
Thus there have been substantial changes in each of the parent’s households representing a significant change in relationships for the child.
On considering the best interest considerations set out in s.60CC the court is satisfied that there has been a prima facie change or new factor sufficient to warrant the mother’s application proceeding.
In all the circumstances the court is satisfied that it is in the best interests of the child to permit the mother’s application to proceed.
Accordingly the response filed by the respondent father on 30 January 2013 will be dismissed in so far as it seeks a dismissal of the mother’s application.
The court will make orders accordingly.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Foster FM
Date: 5 April 2013
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