Poisat and Poisat

[2012] FamCA 968

FAMILY COURT OF AUSTRALIA

POISAT & POISAT [2012] FamCA 968

FAMILY LAW – CHILDREN – Application to vary parenting orders – Where final orders were made by consent in September 2010 – Consideration as to whether there were changed circumstances to justify a new hearing – Principles in Rice & Asplund (1979) FLC 90-725 discussed – Preliminary issue – Where best interests of the children is primary consideration – Where it is not in the children’s best interest to be involved in further litigation – Where children expressed wishes for the present arrangements to remain unchanged – Where change in father’s circumstances is not of sufficient significance to justify revisiting the parenting arrangements – Application dismissed.

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725
In the Marriage of McEnearney (1980) FLC 90-866
Bennett (1991) FLC 92-191
CDJ v VAJ (1998) FLC 92-828
Gaul & Gaul (2000) FamCA 12
King & Finneran (2001) FLC 93-079
SPS & PLS (2008) FLC 93-363

APPLICANT: Ms Poisat

RESPONDENT: Mr Poisat

FILE NUMBER: SYC 768 of 2012

DATE DELIVERED: 16 November 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 26 September 2012 and 13 November 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers

SOLICITOR FOR THE RESPONDENT: Self Represented

Orders

IT IS ORDERED

1. That the application of the father filed 14 February 2012 seeking to vary parenting orders made on 10 September 2010, be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Poisat & Poisat has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 768  of 2012

Ms Poisat

Applicant

And

Mr Poisat

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Before the Court are parenting proceedings in relation to two children C born …2000, now aged 12, and R born …2004, now aged 8.  On 10 September 2010, by consent, final orders were made in relation to the parenting arrangements for the children.  The orders were that the children would live with their mother, and spend time with their father each alternate week from Wednesday until the commencement of school on the following Monday.

2. On 14 February 2012, the father filed an application to vary the parenting orders seeking, inter alia, orders that the children spend equal time with him and with their mother and in relation to their schooling.  The mother opposes those orders, and has filed an Application in a Case seeking an order that the father's application be dismissed pursuant to the principles in Rice & Asplund.

3. The father in his Initiating Application seeks orders which would vary the arrangements put into place by consent in 2010.  He proposes an arrangement whereby the children live with each party for equal time.  The changeover time being on Wednesdays.  The mother, in her response to the father's application, seeks an order that C attend private school commencing on the first day of term in 2013 and the father opposes that application, seeking that C should attend a local, co-educational, state high school.

4. The parties attended a Children and Parents Issues Assessment with Mr L, a Family Consultant, who prepared a report dated 9 May 2012.  In his report, Mr L noted that the mother would prefer that the children live with her and spend time with the father on one weekend each fortnight.  That is, that she would prefer to reduce the amount of time the children spend with their father.  Mr L also noted that the mother indicated that she could, albeit reluctantly, accept the current arrangement continuing.

5. Mr L noted that the father sought that the children spend time with him on a “week about” basis. 

6. Mr L noted that the parties live in close proximity.  Each of the parties has re-partnered, the father lives in a de facto relationship with his new partner, Ms M, and the mother does not live with her new partner, Mr J.

7. C is currently in Year 6 at a primary school that is located in close proximity to the homes of both the parents.  The father would like him to attend the local public school next year and the mother would like him to attend the private school in North Sydney.

8. Mr L noted that both of the parties are committed Christians.  The mother is of the Catholic faith and the father is of the Anglican faith and both attend their respective churches regularly.  The children attend church with the father when they are in his care and with the mother when they are in her care.  The father opposes the children attending Catholic schools on the basis that his religious background “should be represented” and he believes that it would be in the children's best interests to be involved with each parent’s religion and attend co-educational schools.  The mother is of the view that the children's interests would be best served by their attending a single sex school and by their being brought up to be Catholic.  It is the mother's position that the children have hitherto been brought up in the Catholic faith.

9. Mr L noted the key issues as follows:

   ·Whether or not it would be in C's best interests to attend the local public school or the private school in North Sydney.

   ·Whether or not C's expressed preference, which is to attend the private school, should be accorded significant weight.

   ·Whether or not the children should be brought up primarily in the mother's faith, Catholicism, as the mother would prefer, or in combination of the Catholic faith and the Anglican faith which the father would prefer.

   ·Whether or not it would be in the children's best interests to attend a single sex school, such as the private school, which the mother would prefer, or a co-educational school, such as local public school, which the father would prefer.

   ·Whether or not the children's educational, emotional and developmental needs would best be addressed by living in an equal time arrangement, or by living primarily with the mother, and continuing to spend five nights, a fortnight with the father.

1. Mr L goes on to say in his report that it would appear to be inevitable that this matter will require a family report assessment and a judicial decision because the parents dispute is, in part, underpinned by indivisible, and therefore irreconcilable, value conflicts about education and religion.

the law

1. These are proceedings that fall to be determined pursuant to Part VII of the Family Law Act 1975 and, as the discussion of the authorities below will reveal, where particular emphasis is placed on the provisions of sections 60CC(3)(d) and (3)(l) which relate to the effect of change in the children’s lives and the benefit to children of finality in litigation..

2. In Rice & Asplund (1979) FLC 90-725, the Full Court said:

   The principles which, in my view should apply in such cases are that the court should have regard to any earlier order and to the reasons for the material on which the 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 factor in human affairs.  Therefore the court would need to be satisfied that…there is some changed circumstance which will justify such a serious step, some new factor which was not disclosed at the previous hearing which would have been material…It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served…

3. The rule has been the subject of judicial attention on numerous occasions. Nygh J in In the Marriage of McEnearney (1980) FLC 90-866 said:

   The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the children.

4. In Bennett (1991) FLC 92-191, the Full Court refers to the general principle that fresh applications for custody should not be entertained unless there exists a substantial change of circumstances.

5. The High Court in CDJ v VAJ (1998) FLC 92-828 dealing with the admission of fresh evidence on appeal, per McHugh, Gummow and Callinan JJ said at paragraph 118:

   The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare.  In all but the most ideal circumstances, some time will be taken by children to adapt to their different situations.  So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind.  The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainly of prolonged and repetitive proceedings.

6. In Gaul & Gaul (2000) FamCA 12, the Full Court at paragraph 25 and 26, dealing with Rice & Asplund said:

   We find it helpful in this context to have regard to the remarks of the majority judgement of the High Court in CDJ v. VAJ…

   These remarks stress the extent to which the interests of children are ill-served by constant litigation about their residence.

7. And at paragraph 30:

   It 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.  The Family Court is particularly a jurisdiction in which parties will be deeply affected by disappointing outcomes for years.

8. Justice Collier sitting as the Full Court in King & Finneran (2001) FLC 93-079 said at paragraph 41:

   The rule in Rice and Asplund is a rule evolved to protect children from involvement in further unnecessary litigation.

9. And at paragraph 44:

   To apply the test in Rice and Asplund is to make an assessment on the material then available to the court as to whether or not the matter raised in that material make it necessary or proper in the best interests of the children, the subject of the litigation, to allow further proceedings.   In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children.  It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision.

10. In the decision of Warnick J sitting as the Full Court in SPS & PLS (2008) FLC 93-363 at paragraph 48(iii), his Honour makes the clear statement that the rule in Rice & Asplund is a manifestation of the best interests principle.

11. If there were any doubt that the proper application of the rule is to deal with the issue on a preliminary basis, then the judgment of Warnick J in SPS & PLS at paragraph 59 lays that matter to rest. At paragraph 81 his Honour states the principle to be:

    Thus in my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.

the changed circumstances   

1. The orders which currently govern the parenting of the children were made two years ago. They provided that the parents have equal shared parental responsibility for the children. The orders are silent in relation to the question of the children's religious upbringing, although provision is made in relation to a decision as to schooling for each child from Year 7. Order 10 of the orders made on 10 September 2010 provides as follows:

   That the husband and wife shall each nominate a maximum of two private schools and one state school for each child to attend from Year 7, such nomination to be made within 30 days of these orders.  Each party agrees to sign any consent or application form for any school nominated by the other party and pay any cost equally of such application, provided that the documents do not cause an enrolment.  Any such signature of consent or application shall not be construed as an agreement to enrol the child at the nominated school.  The parties will agree in writing to a school at least 12 months before the commencement of Year 7, and if the parties are unable to agree on a school for a child to attend, then the parties will attend on mediation forthwith to resolve the school into enrolment.

2. The father gives evidence that he made his nomination of two private schools and one state school within 30 days of the orders as required. Those nominations were made directly to the mother by e-mail on 26 November 2010.  He says he did not receive any nominations from the mother within the specified time but received an e-mail from her on 10 December 2010 saying “I have not had time to do this. I would imagine, we will need to wait till next year now as the schools are finishing up.” The mother's nominations were made in the 2011 New Year.

3. The mother, in her affidavit, gives evidence that the parties have attended “a lengthy mediation process” in relation to the issues of the children's schooling but have been unable to reach agreement.

4. Fortunately, at the commencement of the hearing before me on 26 September 2012, the parties had agreed that C would attend the private school in 2013 for Year 7.

5. The changes of circumstances which the father relies upon are set out succinctly in his Case Outline Document filed 13 August 2012. He is now in a de facto relationship with his partner Ms M. He did not, at the time of the consent orders have settled accommodation but now has premises in P suburb, nearby the mother’s home in T suburb and close to the children’s present schools. The mother’s study commitment is greater than it was when the consent orders were made and the mother utilises family and friends more than she then did. His business has stabilized and he has more flexible working arrangements allowing him more time for family.  He asserts that the children are now more mature and that R is now equally attached to both parents. He has been able to spend more time with them as a consequence of the consent orders than he did when the family was together. The changes to which the father refers are changes in his circumstances, not changes in the children’s lives.

6. The father also points out that R has been seeing a counsellor in relation to behavioural issues and that C has developed comprehension and language difficulties and is having speech therapy.

7. Insofar as the father alludes to changes in the children’s lives, it is to be understood that children’s circumstances do not remain static and fixed after parenting orders are made and children will develop and move on in their personal and educational lives. Changes of that nature are not changes which would suggest that the parenting orders should be revisited.

8. The issue which I am required to determine is whether the matters relied upon by the father are of sufficient significance for the Court to embark on a fresh hearing in relation to the parenting arrangements. One of the matters that I must take into account is whether the Court is likely, after a fresh hearing, to change the arrangements for the children. To embark on the pathway to a fully defended hearing for the children will be a stressful procedure and precisely the evil from which the law says they are to be protected unless I find that to do so is in their best interests.

9. Because the issue is determined at a preliminary stage in the proceedings, it is determined on untested evidence. I am required to weigh up the benefits to the children of allowing the matter to be contested in a fresh hearing against the detriment of their being again involved in the stresses of litigation.

10. After the commencement of submissions, I was informed by the parties that they had been given appointments for the preparation of the Family Report and that they wished to adjourn the hearing to make a real attempt, through the process of the preparation of the report, to reach an agreement.

11. It was agreed that, if they were unable to resolve their remaining differences, the Family Report would come into evidence before me at the resumed hearing of the Rice & Asplund application. The report was released on 9 November 2012 and the hearing before me resumed on 13 November 2012.

12. The real issue between the parents, it is clear from the report, is that the father wants the children to spend equal time with each parent.

13. The preparation of the report puts the Court in the fortunate position, of having evidence the Family Consultant’s assessment of the equal shared time proposal and of the views of the children in relation to the father’s proposal. Neither of the children supports the father’s proposal. The Family Consultant, Ms B, reports C as saying “I reckon it’s good how it is” and that R said “I’m not too sure about the 50/50. It’s a hard decision. Dad wants the 50/50 and Mum said no”. R said “I don’t want to decide. I’m worried it’s going to be too bad. I’d get more days with [Ms M] (the father’s new partner)…I’d get to see less of Mum…It’d feel different”.

14. C will be thirteen years of age in February 2012 and R is aged eight and a half years. Ms B described C as “quiet and observant”. Nothing in Ms B’s report or in the comments of his parents suggests that C’s views are not well considered and they appear to have been delivered in the face of C’s understanding that his view is contrary to what his father wants. While R is younger and less weight might be given to his views alone, the fact that both of the boys express similar views suggest that their views would be given considerable weight in any decision made about the parenting arrangements.

15. Ms B did not support the equal time proposal for the children at the present time. She recommended delaying any change in the present arrangements for C to settle into high school and for the wife to complete her studies and hopefully move into employment.

16. As is clear from the authorities, the decision to dismiss a parenting application is a decision based on the children’s best interests. In making this decision, I have placed particular weight on the interests of the children not being involved in further litigation, particularly having regard to their ages and their stated wishes, and I find that those matters outweigh any benefit to the children of allowing the litigation to continue.

17. There is no evidence before me that suggests that the changes in the father’s circumstances which he details are of such significance to the welfare of the children that it is likely that they will benefit from having the parenting arrangements revisited.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees  delivered on 16 November 2012.

Associate:

Date:  16 November 2012