Meyer and Shipton

[2013] FCCA 307

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEYER & SHIPTON [2013] FCCA 307

Catchwords:
FAMILY LAW – Children – rule in Rice & Asplund.

Rice & Asplund (1979) FLC 90-725

Applicant: MS MEYER

Respondent: MR SHIPTON

File Number: CAC 90 of 2013

Judgment of: Judge Brewster

Hearing date: 19 April 2013

Delivered at: Canberra

Delivered on: 20 May 2013

REPRESENTATION

Counsel for the Applicant: Ms Tonkin

Solicitors for the Applicant: Elringtons

Counsel for the Respondent: Mr Brzostowski

Solicitors for the Respondent: Dobinson Davey Clifford Simpson

ORDERS

1. That the father’s application that the mother’s application filed 22 January 2013 be summarily be dismissed is refused.

2. That pursuant to section 11F of the Family Law Act 1975 (‘the Act’) the parties attend a Child Dispute Conference with a Family Consultant in this Registry on 15 July 2013 at 9.30am and pursuant to section 11C of the Act such conference be reportable.

3. That the matter is adjourned to 24 July 2013 at 10.00am.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT CANBERRA

CAC 90 of 2013

MS MEYER

Applicant

And

MR SHIPTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. A story is told of the Jewish theologian Hillel the Elder.  He was walking with a fellow rabbi when they were accosted by a man who asked if each could summarise the Torah in the time that a man could stand on one leg.  Hillel’s companion struck the man with his stick for his impertinence but Hillel responded.  He said words to the effect “Do not do to anyone what you would not have done to yourself.  That is the Torah.  The rest is commentary.”

2. The same issue arises in this case in relation to Part VII of the Family Law Act 1975 (‘the Act’).  Can one say of that legislation that the only rule is that the best interests of the child are the paramount consideration and the rest is commentary?  In this case that question is raised with respect to what is often termed “the rule” or “the principle” in Rice & Asplund.  The question is whether that rule is a binding rule to be applied in all cases or is it only a guideline, in Hillel’s words only commentary to the principle that the best interests of the child are the paramount consideration?

Background

1. The parties were married on (omitted) 2006 and separated on 12 February 2010.  There is one child of the marriage X who was born on (omitted) 2008 and is therefore aged 4.

2. Prior to the parties’ separation they were living in (omitted).  On separation the mother moved to her mother’s home in (omitted).  She subsequently purchased a property in (omitted).  On 16 November 2010 the parties entered into consent orders with respect to property and the care of the child.  Whilst these orders were expressed to have been made in the Family Court of Australia at Canberra they were in fact made by the Local Court at Wagga Wagga.  I do not know how this came about but nothing hangs on it.

3. Order 8 of the orders provided for the child live with the parties on a week about basis.  The parties apparently recognised that this would not be satisfactory when the child commenced school in 2014 if the parties continued to live in different cities.  Orders 12 to 15 dealt with this issue.  They read as follows:

   12.    From 1 January 2014, X shall reside in (omitted) in the State of New South Wales.

   13.    In the event that the mother and father are residing in (omitted) from 1 January 2014, the week about arrangement shall continue in place.

   14.    In the event that either party does not reside in (omitted) from 1 January 2014, X shall reside with the parent who continues to reside in (omitted) and shall spend time with the other parent as agreed.

   15.    X shall attend school in (omitted).

4. The mother moved to (omitted) prior to the making of the orders.  She now seeks to reopen the issue of the parent with whom the child should live.  She seeks orders that the child live with her and spend time with the father from Friday until Sunday each alternate weekend.  The father seeks that the application be summarily dismissed by reason of the Rice & Asplund principle.

Discussion

1. The rule in Rice & Asplund is named after a case of that name reported in (1979) FLC 90-725. It was a decision of the Full Court of the Family Court of Australia sitting on appeal from a single judge of that court. That judge ordered that the mother have custody of the parties’ child. In earlier contested proceedings before Larkin J in the NSW Supreme Court, an order was made that the father have custody of the child. The trial judge’s decision therefore reversed that arrangement. On appeal it was argued on behalf of the father that the trial judge should not have reversed the custody arrangements and that an application of the type made by the wife should not be entertained unless there has been a change in circumstances since the original order was made and that the change be of a nature which would justify re-opening the issue. The Full Court agreed that this was an accurate statement of law but found that there had been a sufficient change in circumstances to justify the trial judge re-opening the matter.

2. Rice & Asplund has been followed and explained in many subsequent cases.  For reasons that will emerge it is not necessary to discuss these cases.

3. The authorities have made it clear that the rule applies where there have been consent orders and is not confined to cases where a judicial decision has been made.  This judgment and the views I express in it are confined to cases such as the present where orders have been made by consent.

4. One might ask why should the rule apply equally to orders made by consent and orders made after a trial?  There is a significant difference between orders made by consent and orders made after a contested hearing.  Orders made after a contested hearing are made by a dispassionate and disinterested judicial officer.  It makes no difference financially to him or her whether the case is litigated or settled.  He or she does not face the stress faced by litigants at a hearing.  Orders made by consent are in a different category.  They may represent what the parties believed was in the best interests of a child but there may also be other factors in play.  The agreement may not have been concluded between parties in an equal bargaining position.  An assertive party may have an advantage over an unassertive party.  A party who agrees to arrangements which he or she believes is not in the best interests of the child may do so because of the costs involved in litigating the matter and/or the stress involved in litigating it.  The orders may be a result of a compromise.  Where each party is contending that the child should primarily live with him or her and each has an arguable case they may take the attitude that a guaranteed half a loaf is better than facing the possibility that the result will be no loaf at all and agree on a shared arrangement.  There is no reason to assume that consent orders must have been made solely on the basis of what the parties perceived was the best interests of the child.

5. In the present case a matter to which I have regard is the fact that it is most unlikely that a judicial officer at the conclusion of a contested hearing would have made orders of the type the parties agreed on.  The child was just two years of age when the orders were made and it would be an unusual case where a week about arrangement would be found to be in the best interests of a child this age.  This would particularly be the case where the parties would be living a significant distance apart and a change would have to be effected when the child commenced school.

6. Another difference between re-opening consent orders and re-opening a case where there has been a trial and a judicial decision is that, absent a change in circumstances, the second hearing would have to be, in effect, an appeal against the correctness of the original decision.

7. Mr Brzostowski, who appeared for the father, urged on me that the rule in Rice & Asplund has now solidified into a binding rule of law rather than a mere guideline.  I do not need to discuss his submissions.  I invited him to refer me to a Full Court case where as part of the ratio the court opined that, where one is dealing with a consent order, the rule is a binding rule of law.  I gave him time to research the matter.  He has not referred me to such a case.

8. In my opinion the rule in Rice & Asplund is really a subset of the only binding rule, that is that the best interests of the child are the paramount consideration.  The rule in Rice & Asplund is founded on solid common sense.  Litigation is inimical to the best interests of a child.  Continuing litigation ties up court resources and disadvantages other litigants.  But in my opinion it is not a binding rule of law, at least insofar as consent orders are concerned.

9. In this case I have decided to allow the issue of the party with whom this child shall live to be re-opened.  I do so with considerable regret.  As I have indicated litigation is inimical to the best interests of children.  But I am not satisfied that the orders reflect an arrangement that is in the best interests of the child.  It may be that a decision will be made that the child should live with the father.  On the other hand it may be determined that his best interests require him to live with the mother. 

10. I have made orders that the parties attend a Child Dispute Conference with a family consultant on 15 July 2013 at 9.30am and have requested that, if the matter does not resolve at that conference, a family report be prepared.  I have adjourned the matter to 24 July 2013 at 10.00am and will reserve two days for the hearing of the matter prior to the commencement of the school year in 2014 if it does not resolve.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Brewster

Date:  20 May 2013