Naisby & Naisby
[2024] FedCFamC1F 9
•22 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Naisby & Naisby [2024] FedCFamC1F 9
File number(s): BRC 12442 of 2022 Judgment of: JARRETT J Date of judgment: 22 January 2024 Catchwords: FAMILY LAW – PARENTING – Application to vary existing parenting orders – Trial of separate issue – Whether applicant’s evidence, taken at its highest, establishes material change of circumstances – Appointment of independent children’s lawyer and provision for family report Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC(3)(a), 60CC(3)(l), 62G, 68L
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 1.06
Cases cited: Defrey & Radnor [2021] FamCAFC 67
Elmi & Munro (2019) FLC 93-912
Gillam & Gillam [2012] FamCAFC 130
King & Finneran [2001] FamCA 344
Marsden & Winch [2009] FamCAFC 152
Miller & Harrington (2008) FLC 93-383
Rice & Asplund (1979) FLC 90-725
Searson & Searson (2017) FLC 93–788
SPS and PLS (2008) FLC 93-363
Stern & Colli (2022) 65 Fam LR 548
The Marriage of D & Y (1995) FLC 92-581
Division: Division 1 First Instance Number of paragraphs: 33 Date of hearing: 28 September 2023 Place: Brisbane Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: Litigant in person ORDERS
BRC 12442 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR NAISBY
Applicant
AND: MS NAISBY
Respondent
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
22 JANUARY 2024
THE COURT ORDERS THAT:
1.The children CC born 2009 and DD born 2011 be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the independent children’s lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
2.The independent children’s lawyer shall have leave to inspect and copy documents produced to the Court under subpoena in these proceedings.
3.Pursuant to s 62G(5) of the Family Law Act 1975 (Cth) the parties and the children CC born 2009 and DD born 2011 attend upon a court child expert (as family consultant) as directed by the Director, Court Children’s Service on a date and time to be advised for the purposes of preparation of a report pursuant to s 62G(2) of the Family Law Act 1975 (Cth).
4.The s 62G(2) report deal with the following matters:
(a)any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;
(b)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth) and
(c)any other matters that the court child expert considers important to the welfare or best interests of the children.
5.The court child expert be granted leave to inspect documents produced to the Court under subpoena in these proceedings.
6.The matter be otherwise adjourned for case management hearing to 9.30am on 24 June, 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
This is an application to summarily dismiss proceedings for parenting orders commenced by an initiating application filed on 6 October, 2022 and amended on 3 March, 2023. The applicant, Mr Naisby, is the father of the subject children and the respondent, Ms Naisby, is their mother.
The parties have five children between them: Mr Q, Mr T, Mr X, CC and DD. Mr Q, Mr T and Mr X have all reached the age of the majority and are not subject of this application. CC, born in 2009 (almost 15) and DD, born 2011 (currently 12) are the subject of application for parenting orders. There are already final parenting orders in place for CC and DD.
Initially, final parenting orders were made by a judge of the Federal Circuit Court of Australia (as it then was) on 5 June, 2020 following a defended hearing that took place over eight days. Those orders provided for the children to live with the respondent and spend time with the applicant during school holiday periods as set out in those orders. Those orders upset previous interim parenting orders that provided for CC and DD to live with the applicant and spend time with the respondent. The trial judge delivered extensive reasons for judgment running to more than 90 pages in length. The applicant appealed those orders, but the appeal was dismissed by consent on 2 March, 2021.
Further parenting orders were made by another judge of the Federal Circuit Court of Australia by consent on 2 March, 2021. Those orders are extant and provide for the respondent to have sole parental responsibility for decisions for the children, for the children to live with the respondent and spend time with the applicant each alternate weekend from after school Friday to 6:00pm Sunday, half school holidays and with some other orders about special days and communication by telephone or electronic means.
The applicant, by his initiating application filed on 6 October, 2022 sought a wholesale rearrangement of the March, 2021 orders whereby he would have sole parental responsibility for decisions for the children, they would live with him and spend time from after school Friday to before school Monday (or Tuesday where appropriate) with the respondent.
In support of this initiating application, the applicant filed an affidavit on 6 October, 2022 in which he explained the reasons for the application:
17.I have given time to see if [CC] and [DD] would settle and if the issues raised by the report writers and my persisting concerns would resolve. I have come to the decision that, regrettably, I again need to make an application to attempt to have the children returned to my care. Preparing for the property trial earlier this year and now another property appeal has meant I am submitting this application later than I wanted.
18.The main basis for this application is [CC’s] expressed wish that he lives with me. It is also my continued concern that neither [CC] nor [DD] are happy and are experiencing stress and anxiety in their mother's home. I believe they continue to be at risk of emotional abuse and at risk of serious psychological harm.
The applicant filed an amended initiating application on 3 March, 2023. In that document he seeks that certain of the current orders be discharged and in their stead there be final orders for equal shared parental responsibility, the children live with the respondent and spend time with him from after school Friday until before school Thursday each alternate week and half school holidays. He seeks a procedural order that the parties and the children attend for the preparation of a child impact report.
The respondent, by her response filed 24 November, 2022, seeks that the application be dismissed. Although she does not seek that order in her response on a preliminary basis (she seeks no interlocutory relief), by an order made on 30 November, 2022 a judge of the Federal Circuit and Family Court of Australia (Division 2) ordered that, “the matter be set down for a hearing in relation to the issue of Rice & Asplund (1979) FLC 90-725 for not more than one day commencing at 10:00am on 30 May 2023 in the Federal Circuit and Family Court of Australia at Brisbane”. That hearing was subsequently vacated and the application transferred to this court because I was seized of a property adjustment application then pending between the parties.
On 8 September, 2023 I listed what I perceived to be the hearing of a separate issue pursuant to rule 1.06 item 2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 as well as an interlocutory application relating to property proceedings (not the subject of this file number) for hearing on 19 September, 2023. Due to time taken up by the property application, the Rice & Asplund argument was heard on 28 September, 2023.
The argument advanced by the respondent is that there has not been any significant change in circumstances sufficient to warrant making new final orders for the children to spend more time with the applicant. The applicant says that there has been such a change.
THE LAW
It has long been recognised that although parenting orders may be expressed to be final (in that they are not expressed to be until further order) they nonetheless may be suspended, discharged or varied by the court, or alternative orders put in their stead, if the court is satisfied that there has been a significant or material change in circumstances sufficient to warrant the revisiting of the welfare of the child or children who are the subject of the orders. This is often described by the short-hand expression – “the rule in Rice & Asplund” (among other descriptions). That is a reference to Rice v Asplund (1979) FLC 90-725. In that case Chief Justice Evatt said at 78‑905 that the court:
should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation…Therefore, the court would need to be satisfied by the applicant that … there is some changed circumstance which will justify such a serious step; some new factor arising or, at any rate, some factor which was not disclosed at the previous hearings which would have been material.
There is now much authority on point. But, at the end is the proposition that the “rule” in Rice v Asplund is no more than a manifestation of the best interests principle enshrined by s 60CA of the Act. Put simply and generally speaking, it is not in a child or children’s best interests to be the subject of endless litigation.
The legislative powers of the court, the history of those powers and some recent jurisprudence on them is neatly laid out in paragraphs 33 to 36 of Elmi & Munro (2019) FLC 93-912:
33.It is obvious that what particular order is in the best interests of a child may change as time passes and as circumstances change. Indeed, the decision in Rice and Asplund accepts this but places a brake on repeated applications by insisting that the change in circumstances must be such as to warrant a reconsideration of the orders.
34.Secondly, again, contrary to the opinion of the trial judge, the Act specifically authorises reconsideration of parenting orders. Section 65D provides:
65D Court’s power to make parenting order
(1)In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting orders as it thinks proper.
(2)Without limiting the generality of subsection (1) and subject to section 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.
35.This section is in similar terms to s 64(7) of the Act which applied in 1978 and which was expressly referred to by the Court in Rice and Asplund. It stated:
A court may discharge or vary an order under this section, or may suspend any part of the order and may revive the operation of any part so suspended.
36.Further, as the Full Court pointed out in Poisat, the principle has received express approval by the High Court of Australia and by the legislature. Their Honours said:
12.Such an interpretation derives force from the treatment of the principle in the unreported special leave application in Lowe v Lowe (unreported, High Court of Australia, Mason CJ, Dawson and Toohey JJ, 6 April 1990). Tellingly, there is reference to it by the legislature (albeit as a “principle”) in Notes to both s 44 of Schedule 1 to the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) and s 47(2) of Schedule 1 to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth). The Explanatory Memoranda to both pieces of legislation, too, refer to “the principle in Rice and Asplund” limiting:
89.… the court’s capacity to rehear matters in two kinds of cases: those where there is a change in the circumstances of the parties where some new factor has arisen which would justify a serious step; and those where there is some factor which was not disclosed at a previous hearing that would have been material.
90.It is not generally in the best interests of the child to have repeated applications concerning them before the courts …
91.The note following sub-item 47(2) directs the reader to the principle in Rice and Asplund. This note is to assist readers, particularly self-represented litigants, to understand how sub‑items 47(2) links to the common law.
(Family Law Amendment (Family Violence and Other Measures) Bill 2011 (Cth), Explanatory Memorandum. See, also, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth), Supplementary Explanatory Memorandum, at [10]-[13]).
In Defrey & Radnor [2021] FamCAFC 67, after considering what was said in SPS and PLS (2008) FLC 93-363 at [81] and [84], Miller & Harrington (2008) FLC 93-383 at [105] and Marsden v Winch at [58] the Full Court of the Family Court of Australia summarised the law concerning Rice & Asplund as follows:
19.In our view, the Rice & Asplund test applies to all applications which seek to revisit parenting orders. Sometimes the test will be easily satisfied even though the issues to reconsider are major ones and sometimes the test will be easily satisfied even though the issues to be revisited are relatively minor in character. In both situations, the overarching test is to be applied, namely, (having regard to the best interests of the child) new events or changed circumstances have to be sufficient to provoke a new inquiry.
20.It is also useful when considering, as a preliminary matter, what issues a parent might be permitted to re-litigate, to remember that under s 69ZQ(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), there is a mandatory requirement to decide which of these issues in the proceedings require full investigation and hearing.
21.The rule in Rice & Asplund involves the exercise of discretion and not merely a process of making factual findings. That is because the “rule” is a manifestation of the best interests principle. All s 60CC(2) and (3) matters, so far as they are relevant, must be considered, to the extent that they can be, based on the material before the court. The rule focuses particularly on s 60CC(3)(l) and the preference to make final orders in parenting matters that are least likely to lead to the institution of further proceedings in relation to the child. Axiomatically that is because unless other considerations are more weighty, it is not in the best interests of a child for that child to be the subject of repeated litigation between his/her parents. There is a focus in an application of this kind upon the change(s) in circumstances that outweigh the negative impact of reopening litigation. Although when considering the preliminary issue, if cross-examination is not permitted, then the evidence of the father is to be taken at its highest, and it is not only the father’s evidence that is considered.
22.Consequently, the challenge to the primary judge’s discretionary decision is one to which the normal principles in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513 apply. The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the 2015 orders and secondly, to assess whether or not the father had established that these changes are sufficient to provoke a new inquiry, or put in another way, whether the father has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child’s best interests.
Those passages were subsequently cited with approval in Stern & Colli (2022) 65 Fam LR 548.
Different words are used throughout the case law to describe whether a change of circumstances is sufficient to warrant a re-examination of parenting orders: material, significant, substantial are just some of them. In King & Finneran [2001] FamCA 344, Collier J, citing the decision of the Full Court in The Marriage of D & Y (1995) FLC 92-581, said:
The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.
CONSIDERATION
The applicant accepts, at the very least implicitly, that in the absence of a significant or material change in circumstances sufficient to warrant revisiting the welfare of the children, his application is bound to fail.
The applicant’s evidence is difficult to sift through, but he provides ostensibly four reasons to find there has been a requisite change of circumstances to permit his application to proceed:
(1)the children have now expressed a wish to live with him and they have aged since the last trial such that more weight should be given to their wishes;
(2)the applicant and his wife are now in a position to establish a stable Brisbane home such that the children can spend more time with them but not be required to change schools;
(3)some unparticularised concern about the respondent’s mental health exposing the children to risk of emotional or psychological harm; and
(4)some concerns about the treatment of the children in the respondent’s household and their routines.
The respondent disputes 1, 3, and 4. She offers no comment on 2.
The determination of this preliminary issue must proceed on an assumption that the applicant can make good his factual assertions. In Searson & Searson (2017) FLC 93–788, Kent J held at [60] (Loughnan J agreeing and see also Murphy J at [11] and [43]) that on the hearing of a preliminary issue such as this, the court was bound to assume the acceptance of the applicant’s evidence on the question of whether a sufficient change in circumstances was demonstrated.
As to the views of the children, the applicant’s evidence is that CC has consistently and repeatedly stated since mid-2019 that he wants to live with the applicant. That on its own does not represent a change of circumstances because, on the applicant’s own evidence, it predates the final orders made in 2020 and the orders made by consent in 2021. The applicant, and his wife, give some more specific examples of the children expressing their wishes to spend more time with the applicant since 2021 in their evidence filed in support of this application.
The respondent’s evidence is that she has not observed the children to say any of the things the applicant suggests. She also notes that the applicant expressed the children had told him these things prior to the previous trial.
Prior to the parenting trial that took place in 2020, CC and DD’s residence had been moved to be with the applicant. The primary judge in 2020 found, however, that the children had repeatedly expressed views that they wished to live with the respondent. Her Honour gave weight to the children’s views despite their young ages (9 and 6 at the time the views were obtained, and 11 and 8 by the delivery of judgment).
In determining the children’s best interests, the Court must have regard to any views expressed by them and any factors that the Court thinks are relevant to the weight it should give to their views: s 60CC(3)(a). Any change to the children’s views, or to a factor relevant to giving weight to those views, is a factual change that has the potential to impact upon a consideration under s 60CC and therefore may constitute, if established on the evidence, a change in circumstances: SPS & PLS (2008) 39 Fam LR 295 at [40]. Whether it constitutes a material change in circumstances depends on the gravity of the change. For instance, in Gillam & Gillam [2012] FamCAFC 130 at [43], the Full Court of the Family Court of Australia (as it then was) considered that views that remained consistent but which were expressed with renewed vigour could constitute a material change of circumstances sufficient to warrant the revisiting of the welfare of the children.
Taken at its highest, the applicant’s evidence establishes a change in circumstances, namely a reversal of the wishes expressed by the children before the primary judge in 2020. Whether the applicant has reasonable prospects of establishing that under scrutiny is unclear. The applicant advanced a similar case which was rejected by the primary judge in 2020, though the independent material about the children’s views before the primary judge predated the delivery of judgment by almost two years.
The applicant also argues that the children’s views should be given more weight now given their advanced ages. The maturity of the children is a factor explicitly relevant to the weight to be given to their views under s 60CC(3)(a) and therefore a change in their maturity may well constitute a relevant change of circumstances. It will be a material change of circumstances if the change in their maturity is of such magnitude that it warrants reconsideration of the weight to be given to their wishes. Whilst it is true that the primary judge gave weight to the children’s views as did the parties, presumably in 2021, it is also true that the advanced age of the children suggests more weight and consideration might be given to their views and wishes. Nonetheless, the applicant would still have to establish that the children’s views have actually changed for this to be relevant: giving more weight to their view that they want to live with the respondent is not a change of circumstances that justifies the order sought by the applicant.
As to the second matter identified by the applicant, the ability of the applicant and his wife to establish a stable home in Brisbane represents a change in circumstances. The applicant currently lives in Town KK, some 140km from the respondent’s home and about a two-hour drive to CC’s school. The applicant’s wife owns a property in Suburb TT, currently leased to tenants, but on the applicant’s proposal they would live there during school term. This property is within a reasonable driving distance from CC’s school, the proposed high school for DD, and the respondent’s home. The applicant says that previously they would not have been able to afford this proposal, and the COVID-19 pandemic would have rendered it impossible. Further, the consent orders in 2021 were entered into at a time when this proposal was, on the applicant’s evidence not possible for financial reasons and by reason of the COVID-19 pandemic.
Moreover, and more importantly, a substantial factor of the children’s expressed views to live with the respondent as found by the primary judge was that they wished to remain at their current schools and maintain their existing social networks. Given at that stage the applicant’s proposal was for them to live with him in Town KK and change schools, the children expressed the desire to live with the respondent. So much is clear from [210(c)], [210(e)] and [238(e)] of the primary judge’s reasons for judgment. The primary judge placed significant weight on this: see [242(f)] and [354]. It is certainly not implausible that the children’s views and wishes about who they live with or how much time they spend with each party might change in light of the applicant’s new proposed living arrangements.
The applicant’s case taken at its highest therefore establishes a change in circumstances. Given this is only an interim hearing, and I am not furnished with all the evidence nor do I have the benefit of cross-examination to test the evidence, I cannot conclude whether that change bears the necessary character such that a change to the current arrangements is in the best interests of the children.
It is not necessary to consider whether the third and fourth points raised by the applicant might constitute a significant change in circumstances. However, given that the applicant is likely to attempt to prosecute these issues at a final hearing, it may be of utility to comment on them. The evidence of these two points, in its current form, does not persuade me that either constitutes a change in circumstances, or a change in circumstances significant enough to warrant variation of the parenting orders. It is important for the parties and the Court to keep in mind the effects of ongoing litigation on these two children who have already been subject to parental conflict for many years. There must, at some point, be an end to the conflict between these parties on insignificant issues into which the children will be dragged.
Given the protracted nature of the parental conflict to which these children have been exposed and the fact that these parties have been self-represented and are likely to continue to be so, I consider it in the children’s best interests that they be independently represented by a lawyer. I therefore make an order under s 68L of the Act for the appointment of an independent children’s lawyer.
A family report will be necessary to obtain the wishes of the children more generally and with respect to the applicant’s new proposal. I bear in mind that the preparation of such a report will necessarily involve dragging these children back into the ever-raging parental conflict they experience, but consider it necessary as a means of obtaining evidence of their wishes independent from these two parties. I therefore make an order that the independent children’s lawyer arrange for the parties to attend upon family report interviews for preparation of a report pursuant to s 62G.
I wish to emphasise that this judgment is no determination that the changes to the present arrangements sought by the applicant, or any changes at all will be in the children’s best interests. Whilst the applicant, taking his evidence at its highest, might establish the change in circumstances I have identified above, it is by no means clear that those changes bear the necessary character to warrant a change in the orders already in place.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 22 January 2024
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