FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nelson & Adkins [2022] FedCFamC1F 100
File number(s): PAC 379 of 2021 Judgment of: RIETHMULLER J Date of judgment: 8 March 2022 Catchwords: FAMILY LAW – CHILDREN – Interim and variation orders – Variation of orders – Varying final parenting orders – Initiating Application filed by the non-resident parent seeking previous parenting orders made by consent be varied – Where applicant claims the children have suffered, or are likely to suffer, serious psychological harm as a result of resident parent’s actions or inactions –Consideration of Rice & Asplund threshold issue – Where no significant or relevant change in the children’s circumstances – Application dismissed Legislation: Family Law Act 1975 (Cth) Cases cited: CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172
King & Finneran [2001] FamCA 344; (2001) FLC 93‑079
Marsden & Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1
Rice & Asplund [1979] FamCA 80; (1979) FLC 90‑725
SPS & PLS [2008] FamCAFC 16; (2008) FLC 93‑363
Division: Division 1 First Instance Number of paragraphs: 51 Date of hearing: 28 January 2022 Place: Parramatta Solicitor for the Applicant: Ms Mason of Mason Mia & Associates-Solicitors & Advocates Counsel for the Respondent: Ms Webb Solicitor for the Respondent: Steele & Co Solicitor for the Independent Children’s Lawyer: Mr Pigott of JWP Lawyers ORDERS
PAC 379 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NELSON
Applicant
AND: MR ADKINS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
8 MARCH 2022
THE COURT ORDERS THAT:
1.That the application by the mother filed 28 January 2021 be dismissed.
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 the pseudonym Nelson & Adkins is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
INTRODUCTION
The mother filed an application on 28 January 2021 seeking to vary final parenting orders made by consent between the parties on 26 February 2018 with respect to the care arrangements for their two children, X who is now aged 10 and Y who is now aged eight. The effect of those parenting orders, in substance, is that the parties have equal shared parental responsibility for the children; that school holidays and special occasions are, otherwise, shared…
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CaseChat Overview and Summary
In the matter of Nelson & Adkins, the mother sought to vary existing consent orders concerning the parenting arrangements for the parties' two children, X and Y. The orders were initially made in 2015 and provided for a shared care arrangement, with the children spending significant time with both parents. The mother argued that changes in circumstances warranted a review of these arrangements, citing ongoing mental health issues and concerns about the father's ability to care for the children. The father opposed the application, asserting that the current arrangements were beneficial to the children and that further litigation would be detrimental.
The legal issues before the court centred on whether the changes in circumstances since the original orders were significant enough to warrant a variation in the parenting arrangements. The court had to consider the factors set out in Rice & Asplund and Marsden & Winch, including the past circumstances, the likelihood of significant changes as a result of a new hearing, and the potential detriment to the children caused by re-litigation. The court also needed to weigh the children's welfare against the potential benefits of any changes to the existing orders.
The court found that the mother's concerns, while serious, appeared exaggerated when considered with the subpoenaed evidence. The children were content with the current arrangements, which had been faithfully implemented since the original orders. The court highlighted that the children's primary concern was the acrimony between their parents and expressed a desire for their parents to behave better towards each other. The court concluded that further litigation would likely cause more harm than good, as it would subject the children to additional stress and conflict. Given the circumstances, the court found that there was no sufficient change in circumstances to warrant a variation in the existing orders.
Accordingly, the court dismissed the mother's application to vary the existing consent orders. The existing arrangements for the children's care were to remain in place, providing for shared care between the parties.
The legal issues before the court centred on whether the changes in circumstances since the original orders were significant enough to warrant a variation in the parenting arrangements. The court had to consider the factors set out in Rice & Asplund and Marsden & Winch, including the past circumstances, the likelihood of significant changes as a result of a new hearing, and the potential detriment to the children caused by re-litigation. The court also needed to weigh the children's welfare against the potential benefits of any changes to the existing orders.
The court found that the mother's concerns, while serious, appeared exaggerated when considered with the subpoenaed evidence. The children were content with the current arrangements, which had been faithfully implemented since the original orders. The court highlighted that the children's primary concern was the acrimony between their parents and expressed a desire for their parents to behave better towards each other. The court concluded that further litigation would likely cause more harm than good, as it would subject the children to additional stress and conflict. Given the circumstances, the court found that there was no sufficient change in circumstances to warrant a variation in the existing orders.
Accordingly, the court dismissed the mother's application to vary the existing consent orders. The existing arrangements for the children's care were to remain in place, providing for shared care between the parties.
Orders
Orders of the court
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Background
Background to the litigation
In the following year, in Marsden & Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1, the Full Court said: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.[2]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.BACKGROUND The mother was born in 1985 and is employed as a casual retail assistant, working approximately five days per fortnight. The father was born in 1985 and is employed full-time as a tradesman, working occasional overtime on Saturdays when the children are not in his care. The parties commenced their de facto relationship in October 2008, separating for a short period from December 2008, and then reconciling in January 2009. During the relationship, the mother suffered from mental health issues. In 2010, the mother was admitted to B Medical Centre, D City, presenting with depression and suicidal ideations. The father was noted by the clinic to be “very supportive” of the mother at this time. In 2012 the mother reported to a Department of Family and Community Services (FACS) caseworker that she has thoughts of harming X when she was left alone with the child. In around 2012 the father says that the mother contacted him requesting that he come home from work to assist with X as she was not coping and felt overwhelmed. In 2013, when pregnant with the parties’ second child Y, the mother reported to FACS that she had thoughts about harming the baby. In 2014, the father says that the mother called him to request that he come home as she had picked up X by her throat and thrown her across the room.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The ICL is opposed to the proceedings continuing as the children appear to be in an appropriate arrangement meeting their needs at present.CONCLUSION This case concerns a family that has faced many difficult challenges over the last five to six years. Despite the worrying nature of the mother’s mental health problems when the consent orders were made, orders were nonetheless made, and appear to have been faithfully implemented, to ensure that the children spend considerable time with the mother. The concerns raised by the mother, when viewed in light of the subpoenaed evidence have an appearance of exaggeration. Most importantly, the children are content and the current arrangements appear to be functioning better now than they have for many years. The children’s comments to the family consultant show considerable insight into the core difficulty that they are likely confronting, which is the acrimony between the parents. The children have expressed their desire that their parents behave in a better way towards each other. It is very likely that this would assist in resolving many of the children’s difficulties. To subject this family to yet another period of litigation, with the children having to attend upon various experts for reports, appears to me to outweigh any likely benefits (if there are, in fact, any at all) of any potential changes to the current orders. At best, the proceedings would result in the Court further engaging in the minutiae of the acrimonious relationship between the parents, but nonetheless (even on the mother’s case) leave the children spending considerable time in each of the households. The circumstances of the children and the parents, whilst not precisely the same as those at the time of the orders, do not appear to have changed sufficiently to warrant further proceedings. If anything, the changes indicate that the children have settled into the current arrangements, and that their primary request that their parents ‘be nice’ to one another clearly articulates the most significant improvement that could currently be made to their lives. Of course, no court orders can force the parents to make such a change in their own behaviours. In the circumstances I, therefore, dismiss the application of the mother.
Ratio Decidendi
Legal Principle Established
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