Naisby & Naisby (No 3)
[2024] FedCFamC1F 787
•8 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Naisby & Naisby (No 3) [2024] FedCFamC1F 787
File number(s): BRC 12442 of 2022 Judgment of: JARRETT J Date of judgment: 8 November 2024 Catchwords: FAMILY LAW – PARENTING – Oral application by ICL for summary dismissal of parenting application – consideration of s 65DAAA and previous authority on Rice & Asplund – No change in circumstances established Legislation: Family Law Act 1975 (Cth) ss 62G, 65DAAA, 102QAC
Family Law Amendment Act 2023 (Cth) Schedule 1 Part 3 Clause 27
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 46(2), 46(3)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.06(3)(h), 1.31, 10.09(1), 10.09(2)
Cases cited: Defrey & Radnor [2021] FamCAFC 67
Elmi & Munro (2019) FLC 93-912
McEnearney & McEnearney (1980) FLC 90-866
Racheem & Racheem [2024] FedCFamC1F 595
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363
Stern & Colli (2022) 65 Fam LR 548
Whitehill & Talaska [2024] FedCFamC2F 768
Division: Division 1 First Instance Number of paragraphs: 41 Date of hearing: 7 November 2024 Place: Brisbane Counsel for the Applicant: Mr Jones Solicitor for the Applicant: Hofstee Lawyers Counsel for the Respondent: Ms Barnes Solicitor for the Respondent: Sterling Law (Qld) Counsel for the Independent Children’s Lawyer: Ms Downes Solicitor for the Independent Children’s Lawyer: Life Law Solutions 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:
8 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The application filed 6 October 2022 is dismissed.
2.Costs are reserved.
BY CONSENT THE COURT FURTHER ORDERS THAT:
3.The orders of 2 March 2021 and 5 June 2020 be amalgamated into this single set of orders.
4.All previous parenting orders be discharged.
5.The respondent have sole decision making responsibility for the major long term decisions for the children provided that:
(a)she informs the applicant in writing of the decision to be made, giving fourteen (14) days’ notice;
(b)she takes into account any response provided by the applicant; and
(c)she informs the applicant in writing of the final decision with forty-eight (48) hours of the decision.
6.Forthwith the children CC born 2009 and DD born 2011 (the children) live with the respondent and shall spend regular time with the applicant each alternate weekend from after school Friday or 3pm if a public holiday or pupil free day to 6:00pm Sunday (Qld time) or 6:00pm Monday (Qld time) if it is a public holiday or pupil free day.
7.The children shall communicate by phone/Skype/FaceTime with the parent they are not with at all times as the children reasonably request and may use their mobile phones to do so, the resident parent to ensure the children have privacy during the call.
8.The children are permitted to communicate with both parents via electronic means at all reasonable times.
9.The children spend time with the applicant on the term 1, 2 and 3 Queensland School holidays as follows:
(a)from 3:00pm or after school on the last day of the school term until 6pm on the Sunday falling in the middle of the holidays; and
(b)changeover during the school holiday periods shall occur at school or on days the children are not at school, at Suburb AB Coles Supermarket with the father to collect and deliver the children at the commencement and conclusion of the time the children spend with him.
10.The children spend time with the parents on term 4 Queensland Christmas School holidays as follows:-
(a)in all even numbered years the children shall spend the first half (including the Christmas Day period) and the final week with the applicant and the balance with the respondent;
(b)in all odd numbered years the children shall spend the first half (including the Christmas Day period) with the respondent and the balance with the applicant;
(c)for the purpose of calculating the length of the holiday period, the holidays shall be deemed to commence at after school on the last day of the school term and conclude at 6:00pm (Qld time) the day immediately before commencement of the new school term.
11.The children will communicate by phone/Skype with the parent they are not with on special days, including birthdays and Easter Sunday.
12.That the children shall spend the Mother’s Day weekend each year with the respondent and the Father’s Day weekend each year with the applicant, in lieu of usual weekend time.
13.Each parent provide the other two (2) weeks’ written notice of important family events to which the children are invited, including date, time and location of the event, and the other parent shall not unreasonably withhold the children from attending.
14.Both parents are to keep the other informed of a current contact address and telephone number (including a mobile phone number) and will inform the other parent in writing within forty-eight (48) hours of any change.
15.The parent responsible for the care of the children is to contact the other parent as soon as practicable if the children:
(a)become seriously ill;
(b)are hospitalized; or
(c)involved in an accident; and
(d)inform the other parent of the name and address of any treating doctor and medical facility, which shall not be the father or his wife, Ms O.
16.These orders provide authorisation to:
(a)allow the provision to either parent by any health, educational or welfare professional or other professional attended by the children of any information affecting the health and welfare of the children;
(b)permit the children’s day care centre/school to provide reports, notices and school photographs to either parent;
(c)permit either parent to discuss with the children’s child carer/teacher their performance.
17.The parents are hereby restrained from:
(a)speaking to or about the other parent or their family in a negative, offensive or unpleasant fashion in the children’s hearing; and
(b)discussing any proceedings between the parents or adult decisions/issues in the presence or hearing of the children; and
(c)allowing the children directly or indirectly to read, copy or view any of the court documents or court orders prepared in these proceedings.
18.That the children’s passports be held by the mother and be provided to that parent within seven (7) days of the date of these Orders.
19.The children are permitted to travel overseas during times as agreed between the parents in writing, or otherwise during the time spent with each parent, provided that the travelling parent gives the other parent two months written notice of the travel details including:
(a)departure and arrival dates
(b)flight details, including airlines and flight numbers, and
(c)contact details for the children whilst overseas, including address and telephone contact telephone number.
20.If not already in their possession, the travelling parent shall be provided with the children’s passports within seven (7) days of the above information being received.
21.If not already in their possession, the children’s passports shall be returned to the resident parent within fourteen (14) days of their return to Australia.
22.Should the children’s passports require renewal, both parents will do all things and sign all documents required to renew the passports.
23.In the event the parents cannot reach a joint decision about:
(a)the interpretation of these Orders; or
(b)the implementation of these Orders; or
(c)a variation of these Orders to take account of the changing needs or circumstances of the child or of the parties;
(d)the enforcement of these Orders; which involves the children;
then each of the parents will do all things necessary to participate in counselling or family dispute resolution with an organisation recognised under the Family Law Act 1975 (Cth).
24.The parents are at liberty to contact the children at all reasonable times.
25.Pursuant to s 102QAC of the Family Law Act 1975 (Cth) the applicant be prohibited from instituting further proceedings against the respondent without leave of the Court.
26.Pursuant to s 102QAC(7) of the Family Law Act 1975 (Cth) the respondent is to be notified by the Court of an application having been made and am application being dismissed.
27.The parties be restrained from electronically recording appointments of any type with the children’s treating practitioners or asking any person to do so.
28.Within seven (7) days of the date of these orders, the independent children’s lawyer will provide a copy of these orders and the family report of Ms AC to the following practitioners:
(a)Dr ZZ;
(b)Dr AD (just the orders);
(c)AE School and any other school/s the children may attend (just the orders);
(d)AF Medical Centre, Suburb AB (just the orders);
(e)Dr YY;
(f)Dr AG; and
(g)Dr AH.
29.The independent children’s lawyer be discharged.
IT IS NOTED:
A.Both parties acknowledge the need to positively encourage the children’s relationship with the other party.
B.Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these orders.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
At the commencement of the final hearing of these proceedings, counsel for the independent children’s lawyer made an oral application for the applicant’s proceeding to be summarily dismissed. Neither counsel for the applicant nor the respondent opposes the grant of leave to bring the oral application. Each was content to make submissions on the proposed summary dismissal application. Consequently, I granted leave to the independent children’s lawyer to make the application orally.
The power to summarily dismiss proceedings is supplied by s 46(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The power is engaged when the court is satisfied that an applicant has no reasonable prospect of successfully prosecuting the proceeding (or part of it). The Court need not be satisfied that the proceedings are hopeless or bound to fail for it to have no reasonable prospect of success: s 46(3) of the Act. In the event that the power is engaged, the court may order that the proceedings be dismissed.
Rule 10.09(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) confirms the ability of a party to apply for summary dismissal of a proceeding but r 10.09(2) provides that an application under the rule must be made by filing an application in accordance with the approved form. However, by a combination of rr 1.31 and 1.06(3)(h). the Court may give leave to a party to make an oral application for an interlocutory order. As I have already indicated counsel for the independent children’s lawyer sought that leave. It was unopposed and I granted it.
The principal application before me for hearing concerns a claim by the applicant that certain final parenting orders pronounced in June 2020 and March 2021 be discharged and in their stead different parenting orders concerning the parties two children CC, aged 15 and DD aged 12 be made.
The present orders, effectively those of Judge Spelleken made on 2 March 2021, provide for the respondent to have sole parental responsibility for the children, for the children to live with her and for them to spend time with the applicant each alternate weekend from after school Friday until 6.00pm on Sunday and they are to have electronic communication with their parents and school holidays are to be spent equally between them. Currently, the children live in a suburb in Brisbane. The father lives in northern NSW. By his application and the orders that he sets out in his case outline document, primarily the applicant seeks an order that he have sole parental responsibility for the children, they live with him and they spend time with the respondent each alternate weekend from 10.00am Friday until 10.00am Monday. The balance of the arrangements remain. Alternatively, he says that he should have sole parental responsibility for the children and that they should live in an equal time arrangement whereby they spend time with one parent from 10.00am Monday to 10.00am Wednesday and then the other from 10.00am Wednesday to 10.00am Friday, and with weekends alternating between each parent. That is a fairly convoluted arrangement.
The basis of the application by the independent children’s lawyer is that taking his case at the highest, the court must not reconsider the final parenting orders here because the court cannot be satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the children for the final parenting order to be reconsidered.
This is not the first time that an application has been made to summarily dismiss the proceedings on that basis. The respondent made that application earlier in these proceedings. I heard and determined that application and delivered reasons for refusing it on 22 January 2024.
At the time I decided that application, the law that I needed to apply came from the line of authority which collectively is known as the rule or the principle in Rice & Asplund. In my reasons I considered the more recent consideration of that principle by the Full Court in Elmi & Munro (2019) FLC 93-912, Defrey & Radnor [2021] FamCAFC 67 and Stern & Colli (2022) 65 Fam LR 548 and others.
In Defrey & Radnor [2021] FamCAFC 67 the Full Court said:
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.
In the earlier application, I identified that there were four bases upon which the applicant suggested that there had been the requisite change of circumstances sufficient to permit his principal parenting application to proceed, namely that:
(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.
I approached the determination of the application on the basis that the applicant could make good his factual assertions.
I determined at [25] of my reasons that taken at its highest, the applicant’s evidence might establish a change in circumstances, namely a reversal of the wishes expressed by the children before the primary judge in 2020. I noted that whether the applicant has reasonable prospects of establishing that under scrutiny was unclear. The applicant advanced a case that the children were expressing wishes to live with him which was rejected by the primary judge in 2020.
Further, at [27] I determined that the ability of the applicant and his present wife to establish a stable home in Brisbane represented 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, that was leased to tenants. On the applicant’s proposal he and the children would live in that house during school term. This, I thought, had the potential to amount to a requisite change in circumstances because the applicant deposed that previously he 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.
At [28] of my reasons I recognised that the children’s wishes and the question of a residence in Town KK were informed by the children’s desire to remain at their current schools. I recorded that:
28It 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.
However, I went on to say:
29The 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.
…
33I 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.
Since I delivered those reasons and made orders consequent upon them, the law has changed. The Family Law Act 1975 (Cth) has been amended, relevantly, by the enactment of s 65DAAA. Clause 27 of Part 3 of Schedule 1 to the Family Law Amendment Act 2023 (Cth) specifies that s 65DAAA applies in relation to final parenting orders whether the orders came into force before, or came into force on or after, the day the item in the schedule commences (which was 6 May 2024). Section 65DAA provides:
65DAAA Reconsideration of final parenting orders
(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a)the reasons for the final parenting order and the material on which it was based;
(b)whether there is any material available that was not available to the court that made the final parenting order;
(c)the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d)any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
(3)Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
(4)The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
It is suggested that this section represents a codification of the principles deriving from the line of authority I have referred to above as the principles in Rice and Asplund. I am not sure that is so because, apart from anything else, as the Full Court set out in Defrey & Radnor (at [22]):
… 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…”
Section 65DAAA(1)(a) does not require the court to make any findings that alone findings of fact as to what changes there had been in circumstances since the making of the previous orders. It merely requires a consideration of whether there has been a “significant change of circumstances” since that time. This aspect of the text of s 65DAAA(1)(a) has attracted the attention of other judges: Racheem & Racheem [2024] FedCFamC1F 595 and Whitehill & Talaska [2024] FedCFamC2F 768.
Moreover, the text of s 65DAAA pays no attention at all of the circumstances in which a court might revisit earlier parenting orders as explained by Evatt CJ in Rice & Asplund. In her Honour’s reasons for judgment, Evatt CJ said of the position of a court confronted with an application to change an earlier order that (at 78,905):
… It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.
(my emphasis)
Why the legislation expressly provides that consideration should be given to a change in circumstances but not the other two matters identified by Evatt CJ (a new factor arising or some factor which was not disclosed at the previous hearing) is not readily apparent. There are other matters arising from the text of s 65DAAA which might suggest that it requires the court to take a different approach to that which has been mandated in the authorities I have referred to above but none of those matters were the subject of argument before me and I say nothing more about them. It is not necessary for me to consider them further to determine the application before me.
The independent children’s lawyer put her application on the basis that the evidence before me, when I made my last determination, was to the effect that the applicant would establish a stable residence in Brisbane such that the children could spend more time with him and yet attend the schools they then attended and would not have to travel to northern New South Wales each time they spent time with the applicant. Notwithstanding that, he has not done so. His evidence now is that he will not do so and not be able to do so in the sense suggested by counsel for the independent children’s lawyer. Specifically, in his affidavit of evidence in chief for this trial he swears:
46.I amended my application to a 6/8 arrangement on 2 March 2023 due to [CC’s] desire to stay at the same school and because [Ms O] and I determined we were able to establish a Brisbane home part-time such that the children could spend more time with us but not require them to change schools.
a. A substantially equal time arrangement has not previously been possible as my home at [Town KK] is 140km from [Ms Naisby’s] home.
b. We could not afford this proposal before now and COVID would have made it impossible.
c. We would be using [Ms O’s] rental property at [Suburb TT] as our Brisbane base.
47.[Ms O] owns an investment property in [Suburb TT] that she built and lived prior to our commencing a relationship in 2015. ft has been rented out since 2015.
48.Her [Suburb TT] home is 15 minutes from [Ms Naisby’s] home and [AE School]. It is 2 minutes from the [venue] [Ms Naisby] mentions in her affidavit of 24 Nov 2022, para 39.
49.[Ms O’s] home is a family home such that the kids will have their own rooms and their own play or TV space if they wish it. There is also plenty of space for playing or having friends over. It is at the end of a quiet [street].
50. We are unable to move to Brisbane on a permanent basis for several reasons:
a. The [Town KK property] and working it is a big part of my mental health rehabilitation for PTSD and has been a big part of what has kept me sane through these past almost 9 years. My employment, according to DVA, is working as a [labourer] 15 hours a week. Moving away from the [property] permanently for several years would be detrimental to my mental health, and I suspect [Ms O’s] also.
b. The children love the [Town KK property], and we will still be able to spend weekends and holidays there. The [property] is often the gathering place for their older brothers and for [Ms O’s] and my extended families.
c. The [Town KK property] requires regular ongoing maintenance. My income protection will only last so long, and we still hope we will be able to establish some income from the farm eventually.
The applicant’s wife, Ms O owns the property in Suburb TT referred to by the applicant. She swears in her affidavit of evidence in chief:
15. While our preference-based on observed concerns and preferences raised by the kids- is for [CC] and [DD] to spend the majority of their time with us, it became apparent to [Mr Naisby] and me early in 2023 that [CC] had settled and established friendship groups at [AE School] and that, if we could find a way to keep him there, this would be ideal. [CC’s] psychiatrist supported this. That was when [I] raised with [Mr Naisby] the idea of using my home at [Suburb TT] as a Brisbane base.
16. Leaving our [property] at [Town KK], entirely, is not an option for several reasons: the property requires regular maintenance; we are, slowly, trying to establish a market garden and a self-contained property; the natural environment and working the land is an important part of [Mr Naisby’s] therapy and, frankly, important for my mental health; the [property] is a safe and joyful place for all the children and our pets, as well as our extended families.
17. However, we also believe that we could make work an arrangement that had the children spending most of their time with us (e.g. 11/3 fortnightly split) and still keep [CC] at [AE School] with much, though not all, of [Mr Naisby’s] and my time, spent at [Suburb TT].
CC and DD were both interviewed for the purposes of a report pursuant to s 62G of the Family Law Act by Ms WW on 14 May 2024. In his interview with Ms WW, CC discussed what his father had told him about his proposal for there to be a “50 – 50 arrangement” and that he would live in Suburb TT allowing CC to “keep doing the things I want to do”. CC told Ms WW that if he was allowed to choose where he spent his time he would probably spend less time in Town KK because he disliked the travel. He also mentioned that he wanted a part-time job and spending every second weekend in Town KK was an impediment to that.
DD told Ms WW that she would like the ability to decide where she spends her time on the weekend because sometimes she is unwell or there are things happening in her social circles that she misses out on because she has to attend her father’s home in Town KK. She told Ms WW that she had missed many important events. She emphasised that flexibility was attractive to her rather than anything else.
The family report has been in the parties’ hands since June of this year. There is no evidence from the applicant that he has implemented his plan to establish a home in Suburb TT as he suggests he could so as to meet the children’s needs. Given the comments made by both CC and DD to Ms WW, one might have thought that the applicant would take them on board and establish the residence in Suburb TT so that the children’s concerns about travelling to Town KK as often as they do could be assuaged. Indeed, the idea has even occurred to the applicant himself. In his affidavit sworn on 3 March 2023, the applicant swears:
25. One option I had considered was staying in Brisbane for our alternate Fridays with the children so that [CC] and/or [DD] could participate in Saturday sports if they wish. It would likely mean they would miss about one in every four weekends, but unless they are in A grade this shouldn't create a problem. Having a Brisbane home will make this easier.
Thus, it seems to me that whilst I identified in my earlier reasons that there was a change in circumstances, namely that the applicant had the ability to establish a residence in Brisbane, despite that ability and despite there being good reason for him to do so, namely CC and DD’s desires and the reasons he identifies himself in his affidavit of 3 March 2023, he has not done so.
Counsel for the respondent emphasised some of the matters discussed between the children and Ms WW. This is appropriate because in his affidavit of evidence in chief, the applicant swears:
43.The main basis for the initial application for this matter was [CC’s] expressed wish that be lives with me and [DD’s] desire to spend more time with me and [Ms O].
The applicant’s evidence in chief, that of his wife Ms O and his other witness Ms AJ contain many assertions about statements made to them by either CC or DD that are said to demonstrate ongoing unhappiness and a desire to no longer live in the mother’s household. However, that partisan evidence needs to be put in the context of the interviews conducted by Ms WW with children, as recently as May of this year.
CC told Ms WW:
87. …He did not have any concerns about either parent being aware of his views, opinions and wishes.
88. [CC] described himself has someone who has a lot of friends, adding “I’m very social”. He identified school as being the most important thing in his life, as “that’s where all my friends are. Having friends is a big part of me”.
…
90. [CC] detailed his busy social arrangements, which occur every afternoon, Monday to Friday. He said at Youth Group they enjoy games and fellowship, and talk about religious subjects.
91. [CC] said he would like to secure part time employment, ideally working in a café. When explored with him how this might work, he conceded this would not be successful if he obtained weekend work, given his parenting arrangements.
92. [CC] identified that this was the fourth family report interview he had participated in. He said when he first heard from his father that litigation would be occurring again, he thought “why can’t it stop, and us settle down. Then I felt sad – (sad) that it keeps going on”. He said after his father explained to him his reasoning for further litigation he felt “okay”. He said his father asked him “how would you feel if you could live close to school”, and explained that he wanted a ‘fifty-fifty’ arrangement and that he would live in [Suburb TT], allowing [CC] to “keep doing the things I want to do “. He said, “it sounded like it works out… I felt okay (about the proposal)”. He said his father later explained changes in the details of this proposal (to the current proposal) and said they would attend the [Town KK property] less frequently, which would allow him to go to Youth Group three out of every four Friday evenings, which appeals to him.
93. When asked whether he was happy with the current arrangements, [CC] agreed he was. He said he enjoys doing activities at the family [property] every second weekend and was “fine with how it was, but not at first”.
94. [CC] said the benefits of his father’s proposal would be that he could commence doing weekend sports, and he would get to see his father more. He said it would be challenging to figure out the new routine and “who’s going to meet my needs” but did not see any particular “downside” to his father’s proposal.
95. [CC] similarly felt his mother’s proposal of choosing where he would spend his weekends would not be problematic but added that this meant he would not see his father as much. When explored further with him, he said if given a choice “I don’t think I’d go down (to the father’s [property]) as much; mainly due to the distance. I don’t like travelling”.
96. Overall, [CC] said he would like to spend more time with his father, and do things with him, describing himself as having a score of eight out of ten in the strength of his views.
…
98. [CC] described getting along “good” with his father. He said his father does not talk about his mother much, but when he does, “it makes me feel awkward. I think in my head – why are you saying this? Doing this?” He said they enjoy doing fun things and building things together. He said his father seems angry and strict, and frowns often, but said added he is a nice person and feels loved by him.
99. [CC] described getting along “fine” with his mother, adding that they love to laugh together and have fun. He said sometimes his mother may make comments about his father and about Court, and “I get mad and we argue”, but aside from this, his relationship with his mother is “fine”, and he feels loved by his mother. When explored further, he said his mother will make comments such as ‘where did you get that from? Dad? He’s been chatting to you hasn’t he?!” He said these comments “gets me annoyed; not hearing me and she thinks it’s not my own opinion”.
100. [CC] said his mother enjoys going out and having fun together as a family but lamented that this does not happen much anymore as “she’s on her laptop doing stuff – court stuff, writing stuff”. He said his relationship with his maternal grandmother has also been impacted by the litigation, with similar concerns about his grandmother making comments about him listening to his father.
101. [CC] identified the people with whom he can safely talk to about his feelings, worries and views to be his friends and [Dr ZZ], adding “Doctor listens”.
DD told Ms WW:
102. … She was worried about how her parents may interpret her views and wishes, not wanting to “hurt their feelings (or feel) guilty if I say something”.
103. [DD] does not particularly enjoy going to school due to the conflict and bullying she said exists at her school, adding there is “a lot of violence” at school which she does not enjoy. She agreed she does not like conflict.
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105. After school, [DD] engages with her friends and peers, playing video games online with them, attending [an extracurricular] club with them on Saturday mornings (fortnightly) and hanging out together.
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107. [DD] said the most important things in her life are her family, her [pets] who live with her in her mother’s home, “my friends and having access to talk and be with them, and schoolwork and my future”.
108. [DD] said that when her father informed her of litigation commencing again, she felt “a sense of dread and irritation – not again! Its quite distressing seeing paperwork everywhere and seeing mum not have time for fun”. She suggested the litigation impacted on the family as they are no longer able to go [overseas] but was unsure of the reason why.
109. When asked whether she was happy with the current arrangements or would seek changes, [DD] said she might like the ability to decide where she spends her time on the weekend. She added that if she is unwell, or if she has a party to attend local to her mother’s home on her father’s weekend, she would like the ability to choose. She said she has missed many important events, particularly at her [extracurricular] Club, by the current lack of flexibility. She added “I think more flexibility than changes. I think me and [CC] are mature enough to decide where we will go (on the weekends)”. She said she would still spend time with her father at his [property], because her father “does important things like take us to the beach and hosting family events”.
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112. [DD] identified the people with whom she can safely talk to about her feelings, worries and views to be her mother or [Dr ZZ], adding “he’s cool and jokes around”. She would not feel comfortable talking to her father about her feelings and worries. However, she added that at times, she also feels the same about her mother, particularly when her mother breaks her confidence by telling her maternal grandmother what she has said.
113. [DD] described her father as a “nice and good dad”. She said he is a “really strong” person who she finds intimidating at times, particularly because he does not smile often. She said her father likes to get what he wants and feels he does not always take her wellbeing into account, such as when she is unwell and does not wish to travel long distances to see him, adding “he doesn’t take that lightly”. She described him as being slightly stricter than her mother, having firmer boundaries with respect to technology and bedtime. She feels loved by her father.
114. [DD] described her mother as a good parent, whom she feels loved by. She said her mother does not take change very well, particularly changes and trends within her generation, including fashion.
115. [DD] said her mother does not talk to her about the issues. She said, “then when I question it, its like she’s the victim, and I get confused and scared”. She said when her mother notices change in her after spending time with her father her mother makes comments about it, which she does not enjoy. She said she would feel happier if her mother accepted “me for me” and acknowledged what she wanted to do, particularly with respect to her clothing and the way she would like to spend her weekends.
The objective evidence does not support the applicant’s case that the children wish to live with him. At best, CC told Ms WW that he might like to spend some more time with his father, but that was amongst a range of other matters discussed at the time. It is clear from what the children told Ms WW that they are content with the current arrangements and they enjoy living in Brisbane with their mother. It is true that each had complaints about both of their parents but in the circumstances that exist in this case and the high conflict that exists between their parents, that is hardly surprising.
Counsel for the applicant did not suggest that ultimately the determination of this matter required the opportunity to cross-examine witnesses. He did not suggest, for example that there would be a challenge to Ms WW’s observations of the children and her interviews with them. It was not suggested that it was inappropriate to deal with the application in a way short of a full hearing. Nonetheless, I have considered whether it is appropriate to deal with the application in the way suggested by the independent children’s lawyer, amongst other things, the disadvantage being the inability the challenge witnesses through cross-examination and explore their evidence in that way.
In SPS & PLS (2008) FLC 93-363, Warnick J identified at [55] that the ends served by the rule in Rice & Asplund (for the present purposes I will assume that s 65DAAA is a codification of those principles) will vary according to whether it is applied at the outset of, or at the end of, a hearing. Between [56] and [58] his Honour identified the ends that might be served by an application of the rule as a preliminary matter, not least of which was the avoidance of “the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child”: see also McEnearney & McEnearney (1980) FLC 90-866 at 75,499. Then, at [60] his Honour observed:
60.If the rule is not applied until the end of a full hearing, they cannot; the parties will have litigated in a full hearing; likely that very situation will have impacted on the children, who however may have been more directly involved, for example, in interviews for a Report; public resources will have been expended.
Whilst the present application has not yet been fully litigated, all that remains is the final hearing. Preparation has been done and as I have set out above, the children have been exposed to the effects of this ongoing litigation. They have been interviewed for the purposes of a s 62G report. In their own words, it has impacted them in negative ways.
Nonetheless, an application of the rule in Rice and Asplund, either in its form recognised in the cases or as perhaps codified by s 65DAAA still has a role to play at this late stage in the proceedings. Again, Warnick J in SPS v PLS:
72.I would put the position a little differently. While I have said that the rule needs to be re-formulated if applied at the end of a hearing, and may also carry less force, I do not think that the rule in Rice and Asplund should be cast aside at the end of a hearing to change a previous order, even if the trial Judge has come to the conclusion that on all considerations other than the rule, the best interests of the child require change.
73.There are two matters of public policy that support the application of the threshold question even at the end of a hearing. Namely, that it is important for one judge not simply to substitute his or her conclusion for another judge, unless there has been a change of circumstance sufficient to justify that course. Secondly, albeit the particular litigation has run, if no such rule is even considered, in a general sense litigation will not be discouraged.
74. In summary:
•The rule in Rice and Asplund is generally expressed – as a rule to be applied as a preliminary matter;
•If applied as a preliminary matter it may achieve all its purposes; and
•If applied at the end of a full hearing of parenting issues, the rule cannot achieve all its ends, but can achieve some and ought still receive consideration. However, its force may be diminished.
Having regard to the text of s 65DAAA(1), the court is, in my view, obliged to consider the matters in that section irrespective of the stage at which the proceedings have reached.
Having regard to the lack of submission from any party that cross examination is necessary, and taking into account the matters to which I have just referred, I have determined that dealing with the matter in a summary way is appropriate.
I do not consider that on his material the applicant makes out a change of circumstances based upon the wishes of the children. I have set out those wishes in these reasons, as conveyed to Ms WW above. The children are content with the current arrangements more or less. It is clear that they have good relationships with each of their parents and the arrangements up till now have permitted those relationships to endure, despite their parents’ conflict. I do not consider that it is in the best interests of these children based upon the assertions by the applicant about their wishes and their experiences in the mother’s household for the final parenting orders that are extant, to be reconsidered.
Similarly, I do not consider that on his material the applicant establishes that it is in the best interests of the children for the final parenting orders to be reconsidered because of his ability to establish accommodation in Brisbane. Having regard to the statements of the children made to Ms WW, and the applicant’s own realisation that the establishment of a residence in Brisbane might assist the children even on the weekends, it seems to me that no changes to the present arrangements other than perhaps some flexibility on the part of the parents, is in the children’s best interests.
Having regard to those matters, I find that the applicant has no reasonable prospect of successfully prosecuting the proceeding and it should be dismissed.
I so order.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 8 November 2024
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