Noonan and Noonan

[2014] FCCA 1262

FEDERAL CIRCUIT COURT OF AUSTRALIA

NOONAN & NOONAN [2014] FCCA 1262

Catchwords:
FAMILY LAW – Rice and Asplund – whether objection to be heard at preliminary stage or after evidence tested – changed circumstances found.

Legislation:

Family Law Act 1975, s.60CC

In the marriage of Rice and Asplund (1979) FLC 90-725
Marsden & Winch [2009] FamCAFC 152

Applicant: MR NOONAN

Respondent: MS NOONAN

File Number: MLC 10727 of 2011

Judgment of: Judge F. Turner

Hearing date: 29 April 2014

Date of Last Submission: 29 April 2014

Delivered at: Melbourne

Delivered on: 23 June 2014

REPRESENTATION

Counsel for the Applicant: Mr Strum

Solicitors for the Applicant: Clancy & Triado

Counsel for the Respondent: Mr Williams

Solicitors for the Respondent: Coote Family Lawyers

ORDERS

1. The wife’s objection pursuant to Rice and Asplund, made to the Court on 29 April 2014 is dismissed.

2. Pursuant to s.62G(2) of the Family Law Act 1975, the parties and the children X born (omitted) 2004, Y born (omitted) 2006 attend upon a Family Consultant nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry of the Family Court of Australia for the purposes of the preparation of a Family Report to be given to the Court on or before 5 November 2014, and that:

   (a)The Family Report to deal with the following matters:

   (i)any wishes expressed by the children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

   (ii)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975;

   (iii)any other matters that the Family Consultant considers important to the welfare or best interests of the children.

   (b)The parties do comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.

   (c)The Family Consultant have leave to inspect the subpoenaed material produced to the Court.

3. The matter is fixed for final hearing at 10am on 11 December 2014 with an estimated hearing time of two days.

4. The applicant file and serve all affidavits and other material to be relied upon not later than 28 days prior to the final hearing.

5. The respondent file and serve all affidavits and other material to be relied upon not later than 14 days prior to the final hearing.

6. All parties file and serve a Case Outline not later than two days prior to the final hearing including the following:

   (a)a list of the material relied upon;

   (b)a brief chronology listing significant events;

   (c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);

   (d)a list of other contentions relevant to the decision;

   (e)whether the presumption of equal shared parental responsibility applies (s.61DA), and if not the contentions relied upon;

   (f)a list of the considerations relevant to considerations of equal and substantial parenting time (s.65DAA);

   (g)a list of other relevant considerations (including the relevant section number, eg. ss.60CG, 61F, 65DAB, 65DAC, etc); and

   (h)the actual orders sought.

AND THE COURT NOTES THAT:

1. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out hereto and these particulars are included in these orders.

2. The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

3. In the event of non-compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:

   (a)the filing of documents; or

   (b)any other procedural issues.

   the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.

4. To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Judge, or by another appropriate court officer, shortly prior to the final hearing date.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10727 of 2011

MR NOONAN

Applicant

And

MS NOONAN

Respondent

REASONS FOR JUDGMENT

1. This decision involves an Initiating Application filed by the husband on 24 December 2013 to vary orders made by consent in the Family Court of Australia on 30 November 2011.

2. When the matter came on for interim hearing before the Court on 29 April 2014, Mr Strum of Counsel appeared for the husband and Mr Williams of Counsel for the wife. Mr Williams made an objection pursuant to the principles of In the marriage of Rice and Asplund (1979) FLC 90-725 which he sought be determined at that stage.

3. Mr Strum submitted that the Rice and Asplund objection should be heard at a final hearing, after the evidence had been tested.

4. Mr Strum submits that in the circumstances of this case, the objection pursuant to Rice and Asplund cannot be addressed fully until the husband has been able to test the wife’s evidence under cross-examination.

5. Mr Strum submits that the Court needs to hear evidence about the wife’s assurances to the husband of her commitment to facilitating the husband’s ongoing relationship with the children X born (omitted) 2004, Y born (omitted) 2006 and Z born (omitted) 2009 (Affidavit of Mr Noonan affirmed 23 December 2013 at [15] and Notation A to the orders of 30 November 2011).

6. Mr Strum submits that the Court needs to hear evidence about the commitments that led to the signing of the Application for Consent Orders filed in the Family Court of Australia on 29 November 2011, in particular:

   ·The Court needs to hear evidence about whether the wife has kept the husband informed about X and Y’s attendances with psychologists, and their progress; and whether the wife has made important decisions for the children, such as medical and schooling decisions, without consulting the husband.

7. Mr Strum submits that such evidence will establish changed circumstances from those that existed when the orders were made by consent on 30 November 2011.

8. The Court refers to the decision in Marsden & Winch [2009] FamCAFC 152 as follows:

   “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.”

   51. …

   52. In Miller & Harrington [2008] FamCAFC 150; (2008) FLC 93-383 Warnick, Boland and Murphy JJ distinguished the rule in Rice & Asplund from procedures such as “striking out” and “summary dismissal”. The Court (at [80]) did not accept that the only way which the rule in Rice & Asplund can be applied at a preliminary stage is on the basis that the case of the applicant for parenting orders is taken at its highest. Importantly, the Court said:

   [81] Nor, as presently advised, do we think that the authorities cited by Warnick J in SPS preclude the possibility that, in a "preliminary" hearing for the purpose of ascertaining if an application for parenting orders should go no further because of the rule in Rice and Asplund, some resolution of factual disputes may occur, for example, whether a change of circumstances has or has not occurred.

   [82] However, the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.

   53. The Full Court then cited from the decision of Wilson FM in Cortes & Cabrera [2007] FMCAfam 293 at [19]:

   ...However, the court may consider that in light of the alleged changed circumstances, it was more appropriate to consider all the facts of the case before deciding whether the changes (sic) circumstances existed. An applicant’s material might disclose no change in circumstance such that the application can be summarily dismissed without a respondent being required to put on evidence. An applicant’s material might raise the suggestion that there is a changed circumstance which requires investigation but after reading the respondent’s material the court might be satisfied that there is nothing in the point raised. The court may, as a matter of discretion determine the threshold issue without testing the evidence. Alternatively there may be contested issues of fact as to whether there are changed circumstances in which case a court may need to hear from witnesses and allow cross-examination.

9. Mr Strum submits that a Family Report should be prepared before an objection under Rice and Asplund can be determined against the husband. The Court accepts that submission.

10. The wife has made an objection pursuant to Rice and Asplund. An objection pursuant to Rice and Asplund can be made at any stage of the proceedings and should be determined at that stage.

11. The Court finds that there are significant changed circumstances which require the Court to consider afresh what orders are in the best interests of the children.

12. The circumstances in particular that require that course are:

    ·First, as a result of paying the travel costs to and from (country omitted), the husband has debts of $93,857.00 (Husband’s Financial Statement filed 24 December 2013). Obviously on his limited income he cannot keep adding to, and servicing  such debt – that will limit the children’s right to spend time with the husband and have a meaningful relationship with him [s.60CC(2)(a) of the Family Law Act 1975 (the “Act”)], as he will not be able to continue paying travel costs.

    ·Secondly, the husband has re-partnered in Australia. That has changed his intention from the time of the orders of 30 November 2011 to relocate to (country omitted) in accordance with Notation B to those orders.

    ·Thirdly, the husband has been offered a seven year contract of employment in Australia which has limited the practicality of him relocating to (country omitted) in accordance with Notation B (Ibid).

13. The Court orders that:

    (1)The wife’s objection pursuant to Rice and Asplund, made to the Court on 29 April 2014 is dismissed.

    (2)A Family Report be prepared and be released to the parties 35 days before the final hearing.

    (3)That the matter is adjourned for final hearing on 11 December 2014 with an estimated hearing time of two days.

14. The issues to be dealt with at the final hearing are:

    ·

    The husband’s application to vary the orders made on

    
    

    30 November 2011;

    ·Whether a departure order should be made from the current child support assessment.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Date:  23 June 2014