McCLEASE and Barnicoat and Anor
[2018] FCCA 1658
•19 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
McCLEASE & BARNICOAT & ANOR [2018] FCCA 1658
Catchwords:
FAMILY LAW – Parenting – consideration of principle in Rice & Asplund – previous determinations of parenting Orders in the NSW District Court and Supreme Court – approval given by Director-General for the Mother to institute proceedings in this Court – no relevant change in circumstances to warrant a change to the existing Orders for the Mother to spend only supervised time with the children.
Legislation:
Family Law Act 1975 (Cth), ss.60CA, 60CC(2A), 69ZK(1) & (2)
Cases cited:
Carriel v Lendrum (2015) 53 Fam LR 157
Marsden v Winch (2010) 42 Fam LR 1
Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654
In the Marriage of N [1991] FamCA 54
Newling & Newling (1987) 11 Fam LR 974
O’Brien & O’Brien [2017] FamCAFC 219
Poisat & Poisat (2014) FLC 93-597Rice & Asplund (1979) FLC ¶90-725
SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295
Walter & Walter [2016] FamCAFC 56
Applicant: MS MCCLEASE
First Respondent: MR BARNICOAT
Second Respondent: MR SIMPSON
File Number: CAC 1742 of 2017
Judgment of: Judge Neville
Hearing date: 13 April 2018
Date of Last Submission: 13 April 2018
Delivered at: Canberra
Delivered on: 19 April 2018 REPRESENTATION
Solicitors for the Applicant: D.N. Wilson & Co
Counsel for the 1st Respondent: Mr Stagg
Solicitors for the 1st Respondent: Legal Aid ACT Solicitors for the 2nd Respondent: Legal Aid NSW ORDERS
(1)The Mother’s Application filed on 21 September 2018 be dismissed, the matter be finalised and removed from the docket immediately.
IT IS NOTED that publication of this judgment under the pseudonym McClease & Barnicoat & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRACAC 1742 of 2017
MS MCCLEASE Applicant
And
MR BARNICOAT First Respondent
MS SIMPSON Second Respondent
REASONS FOR JUDGMENT
Introduction
1.These reasons, which have been revised from the transcript, relate to the Mother’s Application, filed 21st September last year, to vary Orders that were initially made by the District Court of New South Wales on 18th April 2013, and more recently by the New South Wales Supreme Court on at least two occasions in 2016. Pursuant to Orders made in the Courts to which I have referred, the children, who are the subject of the Application, [X] (aged 8 years) and [Y] (aged 10 years) live with their respective Fathers in South Australia ([X] [8 years] and [Y] [10 years]), and country New South Wales ([Z] [aged 7 years]).
2.Also in accordance with those Orders, the Mother spends only supervised time with the children in South Australia and in Town A.
3.The primary or fundamental reason given by the Mother that grounds her current Application, notwithstanding the multiple Court events and Orders to which I have referred, is the simple fact that the children are now older and therefore, their best interests are served by them spending more time with their Mother. The Mother also says that she has completed various parenting courses since the last decision and Orders involving the children in 2016.
4.It is these facts that, she says, constitute the relevant change in circumstances such as to warrant the Court re-visiting the current parenting orders.
5.The submissions of the parties are set out later in these reasons. Put shortly, however, both of the Fathers oppose the Mother’s Application because they say that:
(a)the Mother did the same or similar parenting courses prior to the 2016 Supreme Court decisions and therefore, nothing has relevantly changed in this regard;
(b)the Orders of Courts earlier referred to were, in fact, protective of the children in the light of the evidence before both the District Court and the Supreme Court; and,
(c)the Mother’s conduct, as outlined in material from the South Australian Department of Child Protection, Exhibit B, dated 5th February 2018, confirms ongoing risks and concerns for the children.
6.It is not disputed, and cannot be, that the Court’s pre-eminent statutory responsibility, pursuant to Part VII of the Family Law Act1975 (“the Act”), is to protect the children.[1]
[1] In particular see s.60CC(2A) of the Act.
7.In passing, I note that the Second Respondent Father facilitates extra time between [Z] and his Mother each month; but this still occurs at the Town A contact centre.
8.For my part the determinative factors in dismissing the Mother’s Application are as follows:
(a)The very recent material from the South Australian Department of Child Protection. The adverse reports in that material regarding the Mother’s conduct are concerning, to say the least; and
(b)Accepting at its highest the Mother’s evidence, in my view, it does not get reasonably close to the relevant threshold articulated in Rice & Asplund and later cases. Among other things, the various ages of the children (on which the Mother now seeks to rely) were clearly relevant to the considerations of Robb J in the New South Wales Supreme Court, as set out in his Honour’s detailed reasons in 2016.
9.The protective decisions of the Courts to which I have referred are relevantly set out as part of the tender bundle that became Exhibit C. In my view, the exploration of the detail and circumstances only two years ago is more than sufficient as to require the Mother’s Application to be dismissed.
10.Respectfully, the Full Court decision in 1987 in Newling, and then of Gee J in In the Marriage of N in 1991, which were relied upon by the Mother, do not advance any relevant point of principle than those which are otherwise well known from Rice & Asplund and the more recent Full Court decisions set out later in these reasons.[2] Respectfully, in my view, the decisions upon which the Mother relies are, to the degree relevant, overtaken in terms of the more detailed recent exposition of the law in SPS & PLS and Poisat and other Full Court authority to which I refer.
[2] Newling & Newling (1987) 11 Fam LR 974; In the Marriage of N [1991] FamCA 54.
11.Otherwise, I accept the submissions on behalf of both Respondent Fathers. Accordingly, the Application filed on 21st September 2017 must be dismissed.
Minute of Orders Sought by the Applicant Mother
12.The Mother’s Orders Sought were listed in her Initiating Application, filed 21st September 2017, and amended in her Amended Initiating Application, filed 24th October 2017.
13.The amended Orders sought were as follows.
1) The
Applicant Mother andfirst Respondent Father haveequal sharedsole parental responsibility in relation to:a) [X] born 2009 ("[X]")
b) [Y] born 2007 ("[Y]")
2) The
Applicant Mother andsecond Respondent Father haveequal sharedsole parental responsibility in relation to [Z] born 2011 ("[Z]")3) The children [X] and [Y] live with the first Respondent Father.
4) The child [Z] live with the second Respondent Father.
5) The children [X] and [Y] spend time with the Applicant Mother at all times as agreed and failing agreement as follows:
a) During each South Australian school holiday period at the end of Terms 1, 2 and 3 for a period of no less than one week at times and dates to be agreed between the parties;
b) During the South Australian school holiday period at the end of Term 4 for a period of no less than two weeks with times and dates to be agreed between the parties but to ensure the Mothers time falls during Christmas each alternate year;
c) Via Skype calls every Tuesday night (or other night as agreed) between the hours of 5pm and 6pm;
d) At all other times the Mother is able to travel to South Australia, the first respondent Father do all that he can to facilitate the Mother spending time with the children.
6) For the purpose of Order 5 changeover occur at an agreed half way location between the Mother and first respondent Fathers residences, unless otherwise agreed.
7) The child [Z] spend time with the Applicant Mother at all times as agreed and failing agreement as follows:
a) Each alternate weekend from after school Friday (or 3pm on a non school day) to 5pm Sunday;
b) Each Mothers Day weekend from Friday (or 3pm on a non school day) to 5pm Sunday;
c) During each New South Wales school holiday period at the end of Terms 1, 2, and 3 for a period of no less than one week at times and dates to be agreed between the parties;
d) During the New South Wales school holiday period at the end of Term 4 for a period of no less than two weeks with times and dates to be agreed between the parties but to ensure the Mothers time falls during Christmas each alternate year;
e) Telephone or Skype contact every Monday and Wednesday night between 5pm and 6pm;
8) For the purpose of changeover regarding Order 7, the Mother be responsible for collecting the child from an agreed location in Junee at the beginning of spending time with periods and the second respondent Father be responsible for collecting the child at the end of spend time with periods at an agreed location in Town A.
9) That each parent keep the other informed of their current residential address, mobile telephone numbers and any available email addresses and advise the other parent of any change thereto within seven (7) days of such change.
10) That in the event of childhood illness or emergency the parent with whom the child is with will contact the other parent forthwith to inform them.
11) That each of the parties, their servants and agents be hereby restrained by injunction from abusing, insulting, belittling, rebuking, or otherwise denigrating the other party
12) That the Mother be permitted to liaise directly with the children's schools and to receive school notices, information, newsletters, reports, photographs and any other necessary information about the children's progress.
13) The Mother is at liberty to attend at the children's day schools for the purposes of any function or activity normally attended by parents.
14) Such other order as the Court thinks appropriate in the circumstances.
Minute of Orders Sought by the First Respondent Father
14.The First Respondent Father sought that the Application be dismissed.
Minute of Orders Sought by the Second Respondent Father
15.The Second Respondent Father sought that the Application be dismissed.
Submissions of the Applicant Mother
16.The Mother’s written submissions, filed 9th April 2018, were as follows (footnotes omitted):
Introduction
1) On the 19th April 2013, Her Honour Judge Olsson, in the District Court of New South Wales, Civil Jurisdiction, dismissed 2 Notices of Motion filed by the Mother seeking to appeal the decision of the Children's Court at Town A made on the 12th December 2012.
2) The learned Judge also set aside the final orders of the Children's Court Magistrate made on 12th December 2012.
3) Pursuant to Section 79(1) (a) (1) of the Children and Young Persons (Care and Protection) Act 1998, Her Honour ordered that in relation to the children, [Y] and [X], all aspects of parental responsibility be allocated solely to the Father, Mr Barnicoat, to the exclusion of the Mother Ms McClease until each child attains the age of 18 years.
4) Notations were made indicating the Father "do all things reasonably necessary”, to arrange the Mother have contact on severely restricted terms.
5) In relation to the Child [Z] an Identical order was made (as in paragraph 3 herein) granting all aspects of parental responsibility to the Father Mr Simpson.
6) Orders were made in relation to [Z] having supervised contact with the Mother.
7) On the 15th May 2017 pursuant to Section 69ZK of the Family Law Act 1975 the Minister for Family and Community Services approved consent for the Applicant to bring proceedings, to the Federal Circuit Court of Australia for the hearing and determining an application for parenting Orders relating to issues of contact or time spent regarding [Y], [X] and [Z].
8) The Applicant in October 2017 filed an Amended Initiating Application seeking 'time with' Orders in relation to the children [Y], [X] and [Z].
Legal principles
1. Rice v Asplund [1979] fcl 90-725 [sic]
In relation to a change in earlier parenting Order Evatt CJ stated, inter alia, [at 572-3]
a) The Court have regard to an earlier order, AND
b) To the reasons for and material on which the Order was based, (emphasis added) and
c) Some changed circumstances which will justify such a step.
2. Marsden and Winch [2009] FAM CATC 152
a) Past circumstances including the reasons for the decision and the evidence upon which it was based, (emphasis added)
b) Whether there is a likelihood of Orders being varied in a significant way as a result of the new hearing.
c) Likely changes weighed against the potential detriment to the children caused by the litigation.
Consideration of the Bases for the Earlier Order
1. The Orders were made on 19th April 2013, five years ago.
2. The Orders were made pursuant to the provisions of the Children and Young Persons (Care and Protection) Act 1998 NSW (“the NSW Act”).
3. There are no provisions in the NSW Act consistent with Section 60CC or Section 60B of the Family Law Act 1975, in particular sections 60CC(2)(a) and section 60B(1)(a), 2(a) and 2(b).
4. Her Honour [bottom p4 and top p5] outlined the matters she was to consider.
a) Whether the children were in need of care in 2011 (emphasis added) and whether that situation subsists. There was a need to consider the provisions of Section 71 of the NSW Act.
b) Whether there is a realistic possibility of restoration of any of the children to the Mother.
c) Whether the children should be placed or who has parental responsibility for the children.
d) What contact orders are appropriate.
The grounds that her Honour Considered in the Assessment of the evidence were confined to:
1) The Mother’s peripatetic lifestyle.
2) Alienation from the Father’s and family.
3) Physical neglect., and
4) The Mother’s relationship with the children.
Submissions
1) In relation to the children [Y] and [X], there does not exist final orders nor indeed any orders of a Court in relation to the Mother spending time with [Y] and [X]. Therefore, it follows that, the Mother has grounds for commencing an application pursuant to the consent provided by the Minister. A notation, in our submission, is not a Court order.
2) If the Court does not accept the above submission in relation to [Y] and [X] then it is requested that the following be considered in regard to the significant / material change in circumstances principle re the 3 children:
a) The Mother's current circumstances are stable:
i) The Mother resides in a 4 bedroom residence on her own since February 2011, a period of 7 years. [AM p72, 73]
ii) The Mother has undertaken 8 courses in relation to acquiring "parental skills". [AM p65 & annexure HM8].
iii) This is a variation sought many years after the original orders were made and is assisted by virtue of the fact that "the circumstances of children, generally speaking, are likely to change as those children grow up and their psychological and physical needs change from time to time" See Newling and Mole [1987] Fam CA 21; (1987) 11 Fam LR 974 at 977 (Nygh J.) It was held that the trial Judge did not err in coming to the conclusion that the child's 'development, age and maturity’, justified reopening the issue of paternal contact some four years after the previous hearing. See also N and R (1991 15 Fam LR 39).
iv) The child's wishes have not been independently assessed and given the length of time they may be agreeable to spending time with their Mother. [Y] is now aged 10 year 9 months [dob /2011, [X] is now 9 years [2009] and [Z] is 7 years [dob 2011].
v) The child's wishes are unknown as all contact with the children is in the presence of the Father(s). See Morton & Berry (2014) FamCAFC 208. The child in that case expressed a strong desire to live with the Father. In the lower Court the Judge dismissed Father's application. The Full Court by majority found the trial Judge failed to take into account the seminal matter necessary for consideration which was the paramount interest of the child.
vi) The circumstances and matters relied upon by Her Honour in the previous Judgement no longer exist. Therefore, It is submitted, that represents a "significant change in circumstances."
Submissions of the First Respondent Father (Mr Barnicoat)
17.The First Respondent’s submissions, filed 11th April 2018, were as follows (footnotes omitted):
Outline of Submissions for the First Respondent Father
Proceedings
The proceedings concern an application for the Applicant Mother to spend time with the children of relationships with the First and Second respondents, namely [Y], born 2007, [X], born 2009, and [Z], born 2011. The First Respondent is the Father of [Y] and [X].
Brief History of Proceedings
| Date Proceedings Commenced | Date of Decision | Court Hearing Application | Form of Application | Decision |
| 5 Dec 2011 | 12 Dec 2012 | Children’s Court of NSW in Town A | Emergency Action filed by Family and Community Services (NSW) | Final Orders removing Children from Mothers care with sole Parental Responsibility to respective Fathers |
| 7 Dec 2012 | Dec 2012 | Supreme Court of NSW | Stay Application | Dismissed |
| 12 Dec 2012 | 19 April 2013 | District Court of NSW | Appeal of 12 Dec 2012 Orders Filed by Mother | Unsuccessful. |
| 19 April 2013 | 24 April 2013 | Supreme Court of NSW | Injunction to prevent children moving to SA Filed by Mother | Dismissed |
| 26 April 2013 | April 2013 | Supreme Court of NSW | Stay Application and Appeal | Dismissed |
| 1 May 2013 | 21 June 2013 | NSW Court of Appeal (Equity Division) | Review of decision | Dismissed |
| 6 Dec 2013 | 10 July 2014 | Children’s Court of NSW in Town A | Application to Vary Final Orders | Dismissed |
| 15 Dec 2014 | 3 March 2016 | Supreme Court of NSW | Appeal of Decision | Dismissed |
| 2 Sept 2015 | Interlocutory Applications during Dec 2014 Appeal. | Supreme Court of NSW | Notice of Motion in Appeal for Interim Orders | Dismissed |
| 22 Jan 2016 | 3 Feb 2016 | Supreme Court of NSW | Ex-Parte Application for Urgent Injunction | Dismissed |
| 21 Sept 2017 | Pending | Federal Circuit Court - Canberra | Initiating Application Filed by Mother | |
| 24 Oct 2017 | Pending | Federal Circuit Court - Canberra | Amended Initiating Application Filed by Mother |
1) The First Respondent largely adopts the submissions of the Second Respondent dated 9 April 2018 but stresses the following.
2) On 19 April 2013 the District Court made pursuant to the Children and Young Person (Care and Protection) Act 1998 (NSW). These orders were most recently upheld by the Supreme Court of NSW in March 2016 after an appeal by the Applicant Mother to orders refusing her application to rescind the care orders.
3) On 15 May 2017 the Director of Child Protection, department of Family and Community Services (FACS) consented to Federal Circuit Court or Family Court of Australia Proceedings concerning “issues of contact or time spent” in accordance with section 69ZK of the Family Law Act 1975.
4) As the current proceedings are the first in the Federal Circuit Court these do not automatically come within the scope principles outlined in Rice v Asplund but it is submitted that the effect of Rice and Asplund would and should apply.
5) The principles or “rule” in the case of Rice & Asplund apply to the circumstances of the current case. In that case Evatt CJ for the Full Court set out the principles as follows:
“The principles, which in my view, should apply to such cases are that the court should have regard to any earlier order and to the reasons for and the material upon which it was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation.”
The court should only hear an application to vary an earlier order if it were satisfied that there:
“..is some changed circumstance which would justify such a serious step, some new matter 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 be best served. These principles apply whether the original order was made by consent or after a contested hearing. The way the principles apply and the factors which will justify the court in reviewing a custody order will vary from case to case.”
6) The principles in Rice & Asplund have been consistently applied and upheld such that they are now “firmly entrenched in family law in Australia”. The Full Court in Poisat & Poisat [2014] FamCAFC 128, while declining to determine if the principle was a “binding rule” nevertheless said it was “of long standing, has been consistently recognized and applied both in this Court and at first instance, and is intended to apply universally in the sense of applying to every case in which final parenting orders are sought to be discharged or varied subsequently.”
See also: Miller & Harrington (2008) FLC 93-383; SPS & PLS (2008) FLC 93-363, Marsden & Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1, Carriel & Lendrum [2015] FamCA FC 43, Walter & Walter [2016] FamCAFC 56.
7) It is well settled that a Rice & Asplund threshold issue is to be determined by reference to the best interests of the child (Marsden v Winch supra; Walter & Walter supra.
In SPS and PLS, Warnick J said at [81]:
[I]n 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 upon 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.
8) The Full Court said in Langmeil & Grange, referring to SPS & PLS
the rule is a manifestation of the best interests’ principle and founded on the notion that continuous litigation over a child or children is generally not in their interests. Also, that the application of the rule is connected with the nature and degree of change sought to the earlier order.
9) More recently the Full Court observed in respect of the principle as (sic) follows:
In a case where the principle in Rice & Asplund arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the 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 children 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 children to embark upon further litigation enquiring as to the children's best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
10) The Rice & Asplund principles require that there be cogent argument by the applicant for the variation as to why the earlier decision is wrong or should not be followed.
11) As to the application of the rule, the Full Court in Marsden v Winch said:
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.
12) It is submitted that the court would pose the same question as that posed in Miller & Harrington adopting that used by Warnick in SPS & PLS,
“Assuming the evidence of the Mother is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing”.
13) It is submitted that the Applicant Mother has not established a sufficient change in circumstances from the time the issues were last considered. It is submitted that the relevant date of previous proceeding is March 2016 as that was a decision of the Supreme Court of NSW of an appeal of a refusal to rescind or vary the care orders. In that matter the issue of contact with the children and the Applicant’s conduct was specifically considered and the appeal rejected.
14) It is submitted that the court would consider the past circumstances as described in the March 2016 Re M judgement and the reasons for decision contained therein. It is submitted there is no real likelihood of the time with arrangements being varied as a result of another hearing in this jurisdiction and, even if there were a likelihood of variation, any possible changes would be heavily outweighed by the negative impact on the children of subjecting them to further assessment and the stress of further proceedings.
15) The application of the Mother should be dismissed.
Submissions of the Second Respondent Father (Mr Simpson)
18.The Second Respondent’s submissions, filed 9th April 2018, were as follows (footnotes omitted):
1) These proceedings are listed for Preliminary Hearing on 13 April 2018. These submissions address two issues:
a) The appropriateness of a Rice v Asplund hearing, even though these proceedings do not seek to discharge or vary final parenting Orders made by this Court; and
b) Whether the applicant Mother’s application meets the threshold when the rule in Rice v Asplund is applied as a threshold matter.
Brief History
2) On 21 September 2017 the applicant Mother commenced these proceedings by filing an Initiating Application in the Federal Circuit Court. On 24 October 2017 the applicant filed an Amended Initiating Application.
3) It seeks orders that the children: [X] (aged 9) [Y] (aged 10) and [Z] (aged 7) spend time with her in accordance with arrangements proposed in the amended application.
4) The first respondent (the Father of [X] and [Y]) and the second respondent (the Father of [Z]) have filed responses seeking the application be dismissed.
5) On 8 April 2013 Olsson J made Final Orders in the District Court allocating sole parental responsibility for the children to their respective Fathers.
6) Since these Orders the applicant has various applications which have unsuccessfully sought to have the Orders varied or set aside.
7) As the District Court Orders remain in place, the power of this Court to make Orders is affected by s 69ZK of the Family Law Act 1975 (Cth).
8) On 15 May 2017 the Director of Child Protection, Department of Family and Community Services (FACS), wrote to the applicant and advised that the Minister had consented to Federal Circuit Court or Family Court of Australia proceedings “relating to issues of contact or time spent” pursuant to s 69ZK(1)(b) of the Family Law Act 1975 (Cth).
Application of s 69ZK and the rule in Rice v Asplund
9) The purpose of s 69ZK of the Family Law Act is to resolve the relationship between Orders of a Court exercising jurisdiction under the Family Law Act and Orders made by a Court under a “child welfare law” by giving paramountcy to Orders made, or action taken, under a child welfare law.
10) Section 69ZK(1) provides that:
(1) A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless:
a) the order is expressed to come into effect when the child ceases to be under that care; or
b) the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained.
11) The Children and Young Persons (Care and Protection) Act 1998 (NSW) is a “child welfare law”. A child in the sole parental responsibility of a parent by reason of Children’s Court Orders is in the care of a person “under a child welfare law” for the purpose of s 69ZK(1).
12) The applicant has obtained the written consent to these proceedings required by s 69ZK(1). The consent was limited to issues of contact or time spent and the second respondent accepts that the orders sought in the amended Initiating Application stay within the bounds of this consent. It is therefore unnecessary for this Court to consider the extent to which s 69ZK(1) authorises a child welfare officer to circumscribe the matters which may be raised in proceedings in this Court when giving consent.
13) Section 69ZK(2) provides that
(2) Nothing in this Act, and no decree under this Act, affects:
(a) the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; or
(b) any such order made or action taken; or
(c) the operation of a child welfare law in relation to a child.
14) Section 69ZK(2) is not expressly made subject to s 69ZK(1). However, it has been held that it should be read in this way, so that existing Children’s Court Orders do not prevent this Court exercising jurisdiction once the written consent of a child welfare officer has been given.
15) It is submitted that once written consent to proceedings has been given pursuant to s 69ZK(1)(b) it is for this Court to exercise its jurisdiction as it thinks appropriate, subject to the best interests of the child as the paramount consideration.
16) In particular, these are the first proceedings in this Court and the matter does not automatically fall within the scope of the rule in Rice v Asplund as there is no application to vary or discharge extant parenting orders. However, the rule in Rice v Asplund is a manifestation of the “best interests principle” intended to protect children from the effect of repeated litigation unless warranted. The second respondent submits that it will generally be appropriate for the Court to apply the rule in Rice v Asplund in proceedings commenced pursuant to s 69ZK(1)(b), as there are Final Orders in place concerning the same subject albeit made by another Court.
17) It is established that the correct approach when applying the rule in Rice v Asplund as a preliminary matter is to determine:
(i) Has a prima facie case of changed circumstances been established? and
(ii) Is there a sufficient change of circumstances to justify embarking on a hearing?
18) It is an error to consider or evaluate the merits of an application when applying Rice v Asplund as a threshold issue.
Has the Applicant established a sufficient change of circumstances?
19) It is submitted that the relevant time for consideration is when the matter as last before a Court, namely the 2015 Supreme Court proceedings. The Supreme Court did not find it necessary to vary the 2013 Orders nor vary the contact arrangements.
20) The Mother deposes the reasons leading to the removal of the children from her care and continues to deny that she neglected nor assaulted the children. It is submitted that demonstrates a failure to acknowledge and show insight into her involvement in the children being removed from her care.
21) The applicant submits that since this time she has undertaken a number of parenting courses and undergone counselling. The Mother does not demonstrate in her material what she has learnt from these courses and counselling, or how her parenting capacity has changed.
22) The respondent submits the applicant completed similar courses and counselling during the 2015 proceedings and the completion of such courses does not demonstrate a prima facie case of change of circumstances.
23) In event Court determines there is a prima facie case, the respondent submits there isn’t a sufficient change of circumstances to justify embarking on a hearing.
19.In addition to the submissions just set out, at the Hearing the Second Respondent provided the Court with an aide-memoire which set out summarily the courses the Mother had completed prior to the Supreme Court proceedings, and those which had been completed after their conclusion. That document was as follows:
Course completed prior to 2015/2016 Supreme Court proceedings Reference Course completed since Supreme Court proceedings
Reference Bringing Up Great Kids April/May 2015
1-2-3 Magic & Emotion Coaching dated 20 August 2015
Keeping Kids in Mind 19 August 2015
Keeping Children Safe
Documents 10, 11, 12 of tender bundle.
Document 9 tender bundle (letter from Ms S, caseworker/ Community Educator Centacare 6/2/18)
Bringing up Great Kids
1,2,3 Magic
Keeping Kids in Mind co-operative parenting September 2017
Triple P parenting May 2017
Keeping Children Safe August 2017
Resourceful Adolescent Parenting Program August 2017
Engaging Adolescents September 2017
Circle of Security June 2017
Mother’s affidavit paragraph 65 Centacare generalist counselling.
Document 8 tender bundle (letter from Centacare dated 13/2/15)
Attended counselling with Mr J in 2016.
Mother’s affidavit paragraph 66. Engagement with psychologist Dr D 2013 Mother’s affidavit paragraph 66. Outline of Principle
20.Although the submissions of the parties have outlined basic principle, and notwithstanding a degree of overlap or duplication, I wish to set out the following summary of principle. I draw from four of a number of Full Court decisions that deal with the principle first articulated in Rice & Asplund.[3]
[3] Rice & Asplund (1979) FLC ¶90-725.
21.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].[4] 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 his Honour’s comments at [48] and [81], which are as follows:[5]
[4] SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295. Warnick J was sitting as the Full Court.
[5] 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.
22.In 2008, the Full Court (Warnick, Boland & Murphy JJ) in Miller v Harrington discussed further the principle and application of Rice & Asplund.[6] 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.
[6] Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654.
23.At [80] and then 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….
24.In Marsden v Winch, the Full Court observed, at [50]:[7]
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.
[7] Marsden v Winch (2010) 42 Fam LR 1.
25.Then in 2014, a Full Court comprising Strickland, Murphy and Austin JJ delivered judgment in Poisat & Poisat.[8] 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.
[8] Poisat & Poisat (2014) FLC 93-597.
26.More 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.[9] 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….
[9] Carriel v Lendrum (2015) 53 Fam LR 157.
27.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.
28.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.
29.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. Indeed, we note that this was how the issue was framed in the mother’s outline of argument presented to his Honour at the commencement of the hearing. She said this (at paragraph 3):
The central question for consideration by the Court was encapsulated by Warnick J in the following terms (para 81, at page 310):
“… 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.”
30.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.[10]
[10] See further, the comments by the Full Court in O’Brien & O’Brien [2017] FamCAFC 219.
31.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 Amber 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 Amber’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.
32.Secondly, 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…[11]
[11] 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.
33.Thirdly, 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
34.First, Exhibit A is an interim Apprehended Domestic Violence Order, issued by the Local Court in Junee on 12th January 2018. The protected person was/is the Second Respondent. This Order is also part of Exhibit C.
35.Secondly, Exhibit B is material produced by the Department for Child Protection (SA) (“the Department”) pursuant to a Notice of Risk. It confirmed that the children and all the parties are known to the Department in South Australia. However, there are no currently open cases with the Department involving them.
36.This material from the Department summarises the notifications relevantly made between June 2014 and January 2018. There are some 32 notifications or thereabouts. There were 11 notifications in 2017, and 3 such notifications in January 2018. In no instance was there further intervention or engagement by the Department. Most of the notifications involve allegations made against the Father, for example, alleged mental health issues, him exposing the children to pornography, him abusing the children (including grooming them), and equally him making it difficult for the Mother to spend time with the children. The regularity of the Reports, and the equally regular lack of involvement of the Department rather suggests to me that (a) there is no relevant issue, as perceived by relevant authorities, regarding the care of the children by the Father in South Australia, and (b) the notifications, unfortunately, continue apace to the ongoing and continuing disturbance of the children in that State.
37.Thirdly, Exhibit C provides the most comprehensive material which demonstrates the very significant degree of examination of the welfare of the children by the District Court of New South Wales and most recently by the Supreme Court of New South Wales. The decision of the District Court and related documents are at tabs 1 and 2 of this Exhibit. The relevant decision of the New South Wales Supreme Court is at tabs 3 and 5;[12] the Mothers’ written submissions in those proceedings are at tab 4.
[12] Re M (No.6) [2016] NSWSC 170; Re M (No.8) [2016] NSWSC 641 (Robb J).
38.In Robb J’s later judgment (Re M (No.8)), at [9] his Honour set out some of the comments from his earlier decision (Re M (No.6), which included the following (at [190] – [191] of the earlier judgment):
Yet I am left with the concern that it would be in ZM’s interests for more appropriate, precise and enforceable care orders to be made concerning BM’s [the Mother’s] access to ZM, and it is only BM’s conduct that is standing in the way of leave being given that would enable the Children’s Court to deal with that matter.
… but only on the condition that she first demonstrate by her conduct that she has the discipline to cease doing all of the things that now stand in the way of her being allowed to apply to vary the access arrangements …
39.At [12], in commenting on the Mothers’ submissions in that case, Robb J said (emphasis in original):
Unfortunately, the most relevant aspect of BM’s submissions in response is that, save for one exception, they do not mention the conduct that I dealt with at length in the primary judgment, which caused me to form the view that I must dismiss BM’s application, unless there was sound reason for believing that BM would abandon that conduct. There is no acknowledgement of the conduct; or that the conduct was entirely misguided and unjustifiable; or any offer or undertaking that, given one last chance, BM would cease that conduct.
40.And at [15], his Honour concluded:[13]
As a result of BM’s submissions, I have formed the view that the court would not be justified in proceeding on the basis that there is any likelihood that, in the near future, BM will have the insight and discipline necessary to change the way she conducts herself in relation, in particular, to access to ZM, and her complaints to various authorities concerning the manner in which MS has been exercising his parental responsibility in respect of ZM.
[13] See further Robb J’s comments at [17] – [20] where his Honour considered the impact on the Second Respondent here of the Mother’s continued litigation and her general “harassment” and “inconvenience” caused to the Father and the child by her misguided efforts to secure time with the youngest child in this matter.
41.The remarks of Robb J in both of his Honour’s judgments speak strongly of the special caution needed to deal with the Mother’s Application in this Court. His Honour sought to give the Mother in that case the benefit of the doubt but was not convinced that she had the wherewithal to change her ways of complaint.
42.Robb J’s caution has been “vindicated”, in a manner of speaking, given the concerns expressed by the Department in the light of the ongoing, regular “complaints” about the First Respondent and his care of the children. They are more of a piece with the Mother’s conduct that has changed little over time in her desperate attempts to spend time with her children.
43.Further to this, the submissions on behalf of the Second Respondent, that contrary to the Mother’s submissions, she has actually done many, if not most, of the courses the completion of which she [now] says justify the Court’s intervention, tell further against both the truthfulness of the Mother’s submissions, and in turn lead to a conclusion that it would be improper for the Court to grant her Application. To grant it would be, again, to subject the children to further litigation, as they have been since the first round of litigation in 2012, then again in 2013 (multiple Court events), in 2014, in 2015, in 2016, and twice in 2017. The litigation has to stop, as does the “inconvenience” that her constant litigation brings to the lives of the children’s Fathers. It is not in the best interests of the children to be subjected to relentless litigation.
44.And even if the Court entertained her Application, the likelihood is that there would be very little change to the “time-with” regime that is currently in place. There is simply insufficient evidence before the Court, other than what is adverse to the Mother, to warrant the Court changing the current Orders in any material way.
45.For these reasons, the Application, filed 21st September 2017, must be dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 24 July 2018
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