Naldi and Naldi
[2018] FCCA 2413
•31 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NALDI & NALDI | [2018] FCCA 2413 |
| Catchwords: PARENTING – Rule in Rice & Asplund - where final parenting orders made by consent on 5 June 2008 – hearing of preliminary issue - where the Father seeks to discharge those orders – where the Court dismissed the father’s application. |
| Legislation: Family Law Act 1975, ss.60CA, 64B, 65AA, 60CC, 65D |
| Cases cited: CDJ v VAJ [1998] HCA 67 SCVG & KLD [2014] FamCAFC 42 Searson & Searson [2017] FamCAFC 119 |
| Applicant: | MR NALDI |
| Respondent: | MS NALDI |
| File Number: | SYC 7071 of 2017 |
| Judgment of: | Judge Harper |
| Hearing date: | 4 April 2018 |
| Date of Last Submission: | 4 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 31 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Cantrall |
| Solicitors for the Applicant: | Jordan Djundja Lawyers |
| Counsel for the Respondent: | Mr Longworth |
| Solicitors for the Respondent: | Somerville Legal |
ORDERS
The Initiating Application filed 26 October 2017 be dismissed.
The proceedings be removed from the active pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Naldi & Naldi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7071 of 2017
| MR NALDI |
Applicant
And
| MS NALDI |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern the child, [X], born 2003 presently 15 years of age (“[X]”). The parties also share another child, [Y], born 2000, who is presently 18 years of age (“[Y]”) (collectively referred to as “the children”).
By way of Initiating Application filed 26 October 2017, the Applicant father, Mr Naldi (“the father”) seeks that final parenting orders made by consent by the Federal Circuit Court of Australia on 5 June 2008 (“2008 orders”) be discharged and that in their place, fresh parenting orders be made with respect to [X].
By way of Response, the Respondent mother, Ms Naldi (“the mother”) sought the father’s Initiating Application be dismissed.
It was common ground, between the parties, that the father’s application requires consideration of the application of the rule, as it is called, in Rice & Asplund (1997) FLC 90-275 (“Rice & Asplund”).
Background
The father was born 1975 and is presently 43 years of age.
The mother was born 1975 and is presently 42 years of age.
The parties commenced cohabitation in 1999 and married on 2001.
On 27 February 2005, the parties separated. At this time, the children were aged 5 and 1 ½ years of age respectively.
On 31 March 2008, the parties executed a Binding Child Support Agreement which provided, in summary, that the father was to pay to the mother the sum of $1,000 per week by way of child support for the twelve months following the execution of the Binding Child Support Agreement and thereafter $500 per week. The Binding Child Support Agreement also provided, inter alia, that the father was to pay all private school fees as attended by the children and included a notation that both children would attend School 1 from February 2008 and February 2009 respectively.
The 2008 orders were made by consent on 5 June 2008. In summary, these orders provided that the parties were to have equal shared parental responsibility for the children and the children were to live with the mother and spend time with the father each alternate weekend from Friday evening to Sunday evening, three afternoons per week and one morning each week. At this time [Y] was aged 8 and in Year 3 at School 1 and [X] was aged 4. [X] commenced kindergarten at School 1 in February 2009. The mother was living in Suburb A and the father in Suburb B.
In 2009, the children commenced attending School 1.
The parties were divorced on 3 August 2010.
In June 2015, the mother and children commenced living in Suburb C.
In 2016, the parties agreed to vary the parenting orders to allow the time the children spent with the father on each alternate weekend to extend to Monday morning (as opposed to Sunday evening as under the 2008 orders) and that the father spend time with the children two afternoons a week and deliver the children to a ferry for them to then travel home to the mother’s residence (as opposed to three afternoons).
On 18 November 2016, the mother married Mr G. Since separation, the father has also remarried, marrying Ms A in 2014. Ms A and the father have a son, [A] (“[A]”) who is presently 3 ½ years of age.
It is an agreed fact between the parties that during the 2017 school year, both [Y] and [X] boarded at School 1, spending alternate weekends with their parents. [X] still attends School 1.
In September 2017, the parties attempted mediation however no resolution was reached and a Section 60I Certificate issued.
On 26 October 2017, the father filed an Initiating Application in the Family Court of Australia seeking final orders.
On 24 November 2017, the mother filed her Response.
On 27 November 2017, the matter came before Senior Registrar Campbell who transferred the matter to this Court.
The matter first came before me in a duty list on 5 December 2017. Orders were made listing the matter for hearing on the discrete issue as to whether the father’s application should be allowed to proceed, or be dismissed, pursuant to the rule in Rice & Asplund.
On 2018, [Y] turned 18. At present [Y] resides with his parents on a week-about basis.
In February 2018, the mother moved to a new residence in Suburb D.
On 4 April 2018, this matter came before me for a Rice & Asplund hearing.
[X] continues to attend School 1 and is presently in Year 9.
Proposals
The father seeks final orders as set out in his Initiating Application. I will not set out his proposed orders in detail. In summary he seeks that all prior parenting orders be discharged and in their place, orders be made that provide, inter alia, that [X] live with him and spend time with the mother from after school Friday until 6:00pm Sunday, one week in the first, second and third term school holiday periods, half the Christmas school holiday periods and special occasion time.
The mother seeks orders that the father’s Initiating Application be dismissed.
The 2008 orders related to both [Y] and [X]. The proposal of the father relates only to [X], since the Court no longer has jurisdiction in respect of [Y]. Under the 2008 orders both children lived with the mother and spent time with the father in accordance with the orders. The father’s proposal would have the effect of reversing the basic regime established by the 2008 orders, as [X] would live with the father and spend time with the mother.
Material relied upon
The father relies upon the following documents:
a)His Initiating Application filed 26 October 2017;
b)His Affidavit sworn 24 October 2017 and filed 26 October 2017;
c)His Affidavit sworn 24 March 2018 and filed 26 March 2018; and
d)Case Outline dated 3 April 2018.
It should be noted that leave was granted to the father to rely on both of Affidavits he had filed in proceedings, notwithstanding the totality of them exceeded the ten pages permitted for interim hearings pursuant to Practice Note No 2 of 2017 Interim Family Law Proceedings. However, no objection was raised by the mother.
The mother relies upon the following documents:
a)Her Response filed 24 November 2017;
b)Her Affidavit sworn and filed 29 March 2018;
c)Notice of Risk filed 3 April 2018; and
d)Case Outline dated 3 April 2018.
Despite orders being made on 5 December 2017 for the mother to file a Notice of Risk and any Affidavit directed to the principles in Rice & Asplund by no later than 28 February 2018, the mother did not file the required material until 3 April 2018 and 29 March 2018 respectively, being approximately a month later than directed. Despite this, the father had no objection to said documents being relied upon, however did make note of the late filing in oral submissions.
Further, similarly to that of the father’s Affidavit, the length of the mother’s one Affidavit exceeded the ten page limit however leave was granted for the totality of her Affidavit material to be relied upon.
The following documents were tendered in evidence:
Exhibit No. Description of Exhibit Tendered by? 1 Text messages between mother and father Mother 2 Email correspondence between mother to father dated 5/11/15 Mother 3 Letter from Jordan Djundja Lawyers to Somerville Legal dated 11/12/15 Mother 4 Text messages between father, mother and Mr G between 28/02/17 – 1/03/18 Mother 5 Google map screenshots of Suburb D to Suburb E, Suburb F to Suburb E, Suburb G to Suburb D, Suburb H to Suburb D, Suburb D to School 1 and Suburb F to School 1 Mother 6 Text messages between father and mother between 17/01/15 – 7/11/2017 Mother 7 Letter from Somerville Legal to father dated 6/11/2015 Mother 8 Email correspondence and attachment from father to Fiona Hoad, Somerville Legal dated 6/11/2015 and 8/11/2015 Mother 9 Residential tenancy agreement for Suburb D Mother 10 Text message from father to Mr G dated 14 November (year not specified) Mother 11 Child support agreement dated 31/03/08 Mother
The documents marked Exhibits 1-10 were tendered by the mother as part of a bundle and provided to Counsel for the father the morning of the hearing.
With respect to Exhibits 1-10, Counsel for the father submitted that the communications included in the bundle had limited weight because they were not the totality of the communications between the parties. However, they were simply a selection of communications which the mother wanted the Court to see, the father was only served with these late and was unable to respond. It is unnecessary to form a view about the weight of these communications. The application can be determined by reference to other evidence.
The Law
Final parenting orders can be varied pursuant to s.65D(2) of the Family Law Act 1975 (Cth) (“the Act”).
Section 65D(2) of the Act gives the Court the discretion to make a parenting order that “discharges, varies, suspends or revives some or all of an earlier parenting order.” In Reid & Lynch [2010] FamCAFC 184; (2010) FLC 93-448, 44 Fam LR 141 at [232]-[233] the Full Court (O’Ryan J, Finn and Strickland JJ agreeing) held an order made in exercise of the power in s.65D(2) of the Act is a parenting order, as defined in s.64B(1) of the Act, and should be construed as subject to s.65AA of the Act, which confirms that, by s 60CA of the Act, the best interests of the child are the paramount consideration.
The Court also embraced the view of Anthony Dickey in Family Law (Thomson Law, 5th ed, 2007) p 285, that “there are no statutory conditions which must be satisfied before a court may vary a parenting order”. However, as O’Ryan J said at [234], “there are sound reasons why there should be some restraint on the exercise of the power.” The need for finality of litigation involving children and the principles espoused in Rice & Asplund articulate that restraint: [236]-[237] and variation of final parenting orders is not something lightly undertaken: at [238]. A child’s best interest are not served by repeated applications for custody: Searson & Searson [2017] FamCAFC 119, [12]-[15]
In Rice & Asplund, Evatt CJ, with whom Pawley SJ and Fogarty J agreed, said at Fam LR 572-3; at 78,905-6:
“The principles which, in my view, should apply in such case are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present facto 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…These are not necessarily matters for preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should be best served. These principles apply whether the original orders is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way.”
The decision in Rice & Asplund has been cited, discussed or applied many times by the Full Court of the Family Court of Australia (“Full Court”) and trial judges.
It is central to these principles that repeated litigation over children is generally inconsistent with their best interests. In Poisat & Poisat [2014] FamCAFC 128 at [13], the Full Court said:
“Whether or not the principle might be properly called a “binding rule” … for present purposes it can be said that the “rule in Rice & Asplund” is of long-standing, has been consistently recognised 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.”
In Gaul & Gaul (2000) FamCA 12 at [25] to [26], referred to the decision in CDJ v VAJ [1998] HCA 67, observing that the High Court of Australia stressed the extent to which the interests of children are ill‑served by constant litigation, including litigation about their residence. Further, at [30], the Full Court said that the rule in Rice & Asplund is:
“No more than a recognition of the harm capable of being caused to the interests of children, by re‑litigating essentially the same issue at the behest of disappointed parties, that results in this Court usually requiring that circumstances have significantly changed since the matter was last litigated or settled.
Demonstration of significant change is also central. The Full Court in Marsden & Winch [2009] FamCAFC 152; 42 FamLR 1 reviewed the authorities at length, and at [48]-[50] commented:
[48] In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
[49] However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.
[50] Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3) If there is such 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.
The Full Court in Marsden & Winch (supra) at [44] to [47] also emphasised that procedurally an important question is whether the principles are applied in a preliminary way. It is well established, in relation to discharge or variation of final orders, that it is a matter of discretion whether to approach the resolution of the Rice & Asplund issue by way of preliminary hearing or a full hearing.
The value of a preliminary hearing is the potential for more efficient use of court resources. As Kelly J said in Watson & Watson [2018] FCCA 1791 at [376]:“The preliminary issue presented on a Rice and Asplund application is more properly seen as a threshold question which, if answered in the negative, will dispose of the need for any further hearing.”
Where a Rice & Asplund question is determined as a preliminary issue, the hearing is conducted on its merits and not upon the principles which apply where summary dismissal is sought: Marsden & Winch, [47] citing Warnick J in SPS & PLS [2008] FAMCAFC 16; (2008) 39 FamLR 295; FLC 93-363 at [74]. To afford procedural fairness, the parties must be clear that the preliminary issue may be determinative of the application: Edwards & Edwards (2006) FLC 93-306, [97]-[99]; Miller v Harrington (2008) 39 FamLR 654; (2008) FLC 93-383 at [95]-[96]; Gotch v Gotch [2009] FamCAFC 3 at [13]; Marsden & Winch, at [56].
Here the parties took the joint approach of asking the Court to deal with Rice & Asplund as a preliminary issue. Both parties dealt with the father’s application on that basis. The Court agreed with this approach.
Since the hearing was limited to determination of the Rice & Asplund question as a threshold issue, while the best interests of [X] remain paramount, it is not necessary to take account of and weigh all of the primary and additional considerations prescribed by s 60CC of the Act. Such an exercise would defeat the purpose of the rule in shielding children from involvement in further unnecessary litigation: King v Finneran (2001) FLC 93-079; [2001] FAM CA 344 at [41]; Reid & Lynch at [252]-[259]. The extent of consideration the statutory considerations depends upon the nature and breadth of the issues. In Poisat at [34], the Full Court said: “The nature and extent of the consideration of the mandatory statutory considerations must, of course, depend upon the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings (see, for example, SCVG & KLD [2014] FamCAFC 42.” Here, because the application seeks a change to existing agreed, arrangements, ss.60CC(3)(d) and (3)(l) need particular attention, since they “…relate to the effect of change in the children’s lives and the benefit to the children of finality in litigation”: Poisat at [32] where the Court cited the approach of Rees J at first instance with approval.
Although an applicant does not bear a legal onus in a parenting application, he or she does bear the onus of satisfying the test of changed circumstances where the determination involves Rice & Asplund at (574). Some authorities have suggested that, on a preliminary hearing, the Court is bound to assume the acceptance of the applicant’s evidence on the question of whether a sufficient change in circumstances has been demonstrated: Searson & Searson [2017] FamCAFC 119 at [60].
However, in Miller v Harrington (Supra) at [81] the Full Court held that a preliminary hearing does not preclude “some resolution of factual disputes, for example, whether a change of circumstances has or has not occurred.” In Marsden & Winch (Supra) at [55] the Full Court also said “…we do not think that the principle can be given its full weight by restricting the application of the rule in Rice & Asplund to two choices, either application of the rule by taking the applicant’s case at its highest, or a full hearing.”, and at [56], “…a broader range of processes should always be considered.”
In conclusion, the Full Court adopted a formulation which embraced the concept of a prima facie case, saying at [58]:
[The] question might be better formulated in another way in the following proposition (after referring to Miller & Harrington), namely that there is a requirement,
(1) for a prima facie case of changed circumstances to have been established, and,
(2) for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
In light of that discussion, and because the hearing was conducted in a limited manner “on the papers”, I will consider all the evidence and determine the threshold issue of whether the father has established a prima facie case of changed circumstances sufficient to justify embarking on a full hearing.
Discussion
The father contended there was sufficient evidence to support the conclusion that due to the passage of time, circumstances have changed significantly since the 2008 orders were made. He submitted, rightly, that the parties, in 2008, could not have known what lay ahead. However, that observation applies to any final parenting orders.
In support of this contention, the father gave evidence that a significant change of circumstance has come about by a combination of the mother relocating from Suburb I to Suburb C, and the child’s increasing extra-curricular activities.
The father presently resides in Suburb F. On the father’s evidence, the mother’s residence in Suburb C is some 33 kilometres from School 1 and over an hour drive either way. The mother disputes this. She contends the distance between her Suburb C property and School 1 is 18.6km or a 40 minute drive. I accept that the drive from the mother’s residence at Suburb C by car would take between 40 minutes and an hour.
This is compared to 4.9 kilometres from the father’s residence in Suburb F to School 1 or approximately a 10 minute drive. The father submits that as [X] spends eleven nights each fortnight in his mother’s care under the current parenting arrangement, and given [X] is involved in a number of extra-curricular activities that see him at school to at least 5:30pm most evenings, the mother’s relocation to Suburb C has resulted in a significant increase in the travel [X] is required to do to get to and from school and this has had a significant adverse impact upon [X].
The mother conversely submits that the contention of the father that she has recently relocated to the suburb of Suburb C “is at the very least disingenuous and more likely, misleading”. The mother deposes to have moved to the suburb of Suburb C in June 2015, more than two years prior to the father filing his Initiating Application on 26 October 2017.
Further, it is worth noting at this time that although the mother did reside in Suburb C for some time, including at the time the father filed his Initiating Application, she now deposes to be living in Suburb D. On the mother’s evidence, Suburb D is approximately a 15 minute drive from School 1.
The mother submits that at the time the father swore his Affidavit on 24 March 2018, the father was aware that she was now residing in Suburb D however he failed to make any mention of this in his material.
In response, the father contends the mother’s move to Suburb D is only temporary whilst the Suburb C property is renovated and that the mother intends to return to living in the Suburb C property upon the renovations being completed. The mother’s evidence was silent on the reason behind her move to Suburb D. However at hearing, she conceded that the Suburb C property was in fact currently under renovation and although there were no set plans, it was a possibility that she may return to the Suburb C property in future. The Suburb D property is rented by the mother. A copy of the rental agreement for the Suburb D property became Exhibit 9. The term of the lease for the Suburb D property is nine months, with the option for a further three months. This is consistent with a short stay in Suburb D.
In response to the allegation made by the mother that her move to Suburb C did not constitute a ‘recent’ change, the father submits that although he did not file his Initiating Application until 26 October 2017, he had raised his concerns with respect to the mother’s move and effect on [X] long prior and the parties had been attempting to resolve their issues by agreement. In my view, this submission highlights the fact that many features of the changes in circumstance relied on by the father have been successfully managed by the parties and [X] for some time without the intervention of the court.
It is common ground that [X] has been involved in a number of extra-curricular activities and therefore had a demanding weekly schedule in the first half of 2018. For example, the father deposes to [X]’s weekly schedule at the time his Affidavit was sworn as being as follows:
a)On Monday afternoon from 3:00pm to 5:00pm, (hobby);
b)[X] plays (sports) during the winter sports term and this involves training in Suburb E on Tuesday and Thursday nights from 5:30pm to 7:00pm, which the father transports him to and from, with games held on weekends throughout the Suburbs; and
c)[X] plays (sports) during the summer sports terms and this involves training each afternoon Monday to Thursday from 3:00pm to 5:00pm, and games on the weekend, with some games being held at School 1 and other games being held at various schools throughout the north, west and east of Sydney.
The father argues that, if the mother resides in Suburb C, which is over an hour’s drive from School 1 on his evidence, this meant that when [X] was living with his mother, he would often not get home until after 8:30pm on Tuesday and Thursday and between 6:00pm and 6:30pm on other weekdays. Thereafter [X] would need to complete homework. The father deposed that on occasions he dropped the child to the mother, he would observe him to fall asleep in the car or make note that he felt tired.
The mother contends that [X] has had sporting commitments in the suburbs of Sydney for the last six years and as such, this does not amount to a recent change, nor is it a relevant change to [X]’s circumstances to warrant the parenting orders be discharged as sought by the father.
It should be noted that it is compulsory for all Year 9 School 1 students to live for six months at Town A, a country education facility owned by School 1. As [X] is presently in Year 9, from 24 July 2018 to 6 December 2018, he has been and will be residing at Town A, only returning home during the school holiday period from 27 September 2018 to 16 October 2018 and with parents only permitted to visit students on two occasions. Therefore, he will not be required to take in any extra-curricular activities.
It is an agreed fact between the parties that during the 2017 school year, both [Y] and [X] boarded at School 1, spending alternate weekends with their parents. The father submits this decision was made by the parties jointly to reduce the travel burden on the children. The mother disputes this and contends the reason the children boarded was due to [Y] suffering emotional issues for which it was decided it would be in his best interest to board, and [X] along with him to avoid separating he and [Y].
The father submits that as [X] boarded at School 1 during 2017, the “status quo” was that [X] lived with each of his parents on an equal time basis, being that [X] spent each alternate weekend with each of his parents. The father further submits that as [X] did well during his time as a ‘boarder’, this demonstrates that [X] can thrive away from the primary care of the mother and that both parents have a relationship with [X] that can be sustained in such a care arrangement.
The mother does not dispute that [X] attended boarding school during 2017 however the mother disputes that boarding can be considered a relevant change in his circumstance, particularly where she contends that during this time period she continued to primarily care for [X] during the week and on weekends.
The father additionally submits that as [Y] lives with the mother and father on a week-about basis, at present this constitutes a relevant change to be taken into consideration. The mother does not dispute that [Y] divides his time between the parties’ homes respectively and whilst she concedes this does reflect a ‘change’, she submits that it is not a relevant change with respect to [X].
In summary, the father contends that if [X] was to live primarily in his care as sought, [X] would be required to travel significantly less to and from school.
In opposition, the mother submits that there is no doubt that since the parenting orders were made, various aspects of the children’s lives have evolved, as to be expected, but none of the particular changes identified by the father are of such gravity or so significant to constitute a sufficient change in [X]’s circumstances to warrant the parenting orders being discharged and a new hearing embarked upon.
Further she submits that, despite the apparent conflict between the parties as to parenting arrangements for [X], the current parenting orders are working well for [X] and therefore no change is required.
The mother submits that the driving force behind the father’s Application is not to do with concern for the circumstances of [X], but rather is solely focused upon the father’s attempts to reduce or terminate his child support obligations. In support of this submission, the mother deposes in her Affidavit dated 29 March 2018 to a number of incidences that she contends demonstrate the father’s dissatisfaction over the years with his “dissatisfaction” and “disgruntlement” with paying child support and includes a number of excerpts of correspondence from the father. The father denies this.
The mother also raises allegations of family violence, historical and bullying. The father, at hearing, denied these allegations. I am unable to make any findings about these allegations on a preliminary hearing.
Although the mother submits the application has no foundation, she further argues that if the matter be allowed to go forward to a full hearing, there is little likelihood the current arrangements would ultimately be varied.
Conclusion
The question is whether the father has demonstrated a prima facie case of changed circumstances sufficient to justify embarking on a full parenting hearing.
In my view, the father has not discharged this onus. Change has clearly taken place in the life of [X] since 2008. But the type of changes which have evolved in the life of both children, but relevantly [X], are routinely encountered by families raising teenage boys. This includes [X]’s sporting prowess. Most families, whether parents are divorced or remain together, must juggle the demands of extra-curricular activities as children mature. It is not unusual for children in Sydney to attend elite private schools from distant suburbs. The existence of the School 1 bus servicing the (suburbs) is one testament to this reality and one example of how such travel is regularly managed.
There may be practical advantages to [X] if he lived with the father and lived closer to School 1 more often. However, the father has not demonstrated that such a possibility outweighs the benefits to [X] of the present regime under the 2008 orders, nor that [X] should be put through the burden of a parenting hearing, including involvement in the preparation of expert evidence from a family consultant.
One curiosity of the father’s case is that according to his own evidence, [X] wishes to return to boarding school in Years 11 and 12, or 2020 and 2021 “so he can represent the school in sporting events at the highest level and have time to study for his HSC”. That sounds sensible. But in light of the time spent in Town A for the balance of 2018, any practical difficulties surrounding [X]’s extra-curricular activities and the distance between School 1 and the mother’s home may thus only be relevant for 2019 and resolve thereafter.
Moreover, it is not certain that the mother will continue to live in Suburb C. The father according to his own evidence may change residence from Suburb F to Suburb J. According to the mother, the father has expressed an intention to move to (country omitted). I am unable to form a view as to whether this is accurate. In submissions the father denied any proposal to move to (country omitted). However, the evidence does support an inference that the father has given serious consideration to a change to his residence before 2019. It cannot be known how this would affect the operation of his proposed orders, if it takes place.
The existing order for equal shared parental responsibility requires the parties to consult and seek to reach consensus about major long term issues affecting [X]. The evidence satisfies me that the parties have been reasonably successful in doing so. The 2008 orders have provided a period of stability. I infer [X] is accustomed to this regime. At his age and stage of development it is likely he will suffer detriment from a full parenting hearing.
The father gave evidence that under the 2008 orders, [X] and [Y] always moved together. They have a strong bond. Now [Y] has turned 18 he lives week about with each parent. However, the 2008 orders do not involve week about time with each parent for [X]. Nor does the proposal of the father. On the evidence, if the 2008 orders remain unchanged, [X] will continue to see [Y].
For these reasons, I am not satisfied there is a likelihood that a full hearing would result in any change to the 2008 orders.
I am unable on the evidence to conclude that the father’s application was motivated by a desire to escape his child support obligations. It may have been a factor, but I have not taken it into account in reaching my decision.
Consequently, for the reasons given above, I am not satisfied the father’s Initiating Application should proceed to a full hearing. I will dismiss the father’ Initiating Application.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Harper
Date: 31 August 2018
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