POPE & LETTEN

[2014] FCCA 2032

FEDERAL CIRCUIT COURT OF AUSTRALIA

POPE & LETTEN [2014] FCCA 2032

Catchwords:
FAMILY LAW – Parenting – Rice & Asplund – whether there has been a change in circumstances – application dismissed.

Legislation:

Family Law Act 1975

DL & W [2012] FamCAFC 5
Lagham & Lagham (1981) FLC 91-014
Marsden & Winch [2009] FamCAFC 152
In the marriage of McEnerney [2001] FamCA 344
Rice v Asplund (1979) FLC 90-725

Applicant: MR POPE

Respondent: MS LETTEN

File Number: MLC 5706 of 2013

Judgment of: Judge McGuire

Hearing date: 29 August 2014

Date of Last Submission: 29 August 2014

Delivered at: Melbourne

Delivered on: 12 September 2014

REPRESENTATION

Counsel for the Applicant: Ms Williams

Solicitors for the Applicant: Septimus Jones & Lee

Counsel for the Respondent: Ms Tulloch

Solicitors for the Respondent: Lewenberg & Lewenberg

ORDERS

1. The mother’s application filed by way of an Amended Response on 18 June 2014 seeking parenting orders is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5706 of 2013

MR POPE

Applicant

And

MS LETTEN

Respondent

REASONS FOR JUDGMENT

The Application

1. The mother is the applicant in proceedings concerning two children, X, born (omitted) 2002 (aged 12 years) and Y, born (omitted) 2004 (aged 10 years).

2. On 17 January 2014 my colleague Judge Hughes made final orders after a six-day trial held over November and December 2013. Those orders provided inter alia:

   a)that the parents have equal shared parental responsibility for X and Y;

   b)that X and Y live with the mother;

   c)that X and Y spend the time with the father as follows:

   i)each second weekend from after school on Thursday until the commencement of school on Monday;

   ii)any other week from after school on Thursday until the commencement of school on Friday;

   iii)for half of all school holidays;

   iv)such additional or alternative times as agreed between the parties.

3. The mother filed her application on 18 June 2014, some five months after her Honour’s final orders.  The respondent father raises an issue that there has been no material, substantial or significant change in circumstances since the making of those orders and that consequently the application should be dismissed under what is commonly known as the principle in Rice v Asplund[1].

   [1] (1979) FLC 90-725

4. The mother’s application came before Judge Stewart for a first mention and directions in a duty list on 26 July 2014.  Her Honour then listed it for hearing with a one-day duration on 29 August 2014.  Her Honour was unable to hear the matter due to her conduct of an ongoing trial, and hence the matter was placed before me.  When called on before me, counsel for the mother argued that the Rice v Asplund issue should be determined as a part of a full trial with testing of the evidence and with an estimated hearing time of two to three days. Counsel for the father argued to the contrary, that the issue be determined on a preliminary or “threshold” basis.  I preferred the argument of the respondent and gave separate ex tempore reasons.  The matter therefore proceeded before me on submissions as to the preliminary issue of whether or not the application should be dismissed on consideration of the principles in Rice v Asplund.

Relevant Law

1. In the judgment which gives its name to the relevant principle, parenting orders were made providing for a father to have custody (as it then was) of the children.  Nine months later the mother issued a fresh application seeking orders for the custody of the children.  The judge at first instance favoured the mother’s application and varied the earlier orders.  The father took the matter on appeal whereupon the Full Court at [78,905]-[78,906] found: 

   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 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 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 …

2. The courts have noted that it would be normal to expect some change in circumstances of the parents or the children following a contested hearing and with the flux of time.  However, should it eventuate that there existed at the time of the hearing a factor which was not disclosed which would have been material then a further hearing may be warranted.[2]  .

   [2] Lagham & Lagham (1981) FLC 91-014

3. Collier J in King & Finneran[3] considered the rationale of the principle thus: 

   The rule in Rice v Asplund is a rule evolved to protect children from involvement in further unnecessary litigation.  To require a court to make a detailed determination of the matters set out in section 68F (now s 60CC) would defeat the purpose of that protection …

   To apply the test in Rice v Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings …

   …to be either significant or substantial is to indicate that a matter is of importance, of consequence, of real worth, of ample or considerable amount, quantity, size etc.  When related to a change in circumstances, this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time or in the usual course of human activity.

   [3] [2001] FamCA 344

4. The public policy aspect was further noted by Nygh J In the marriage of McEnerney[4]: 

   …the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes.

   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 child.

   [4] (1980) FLC 90-866 at (75,499)

5. The Full Court more recently considered the principle in Marsden & Winch[5] observing: 

   …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:

   a)the past circumstances, including the reasons for the decision and the evidence upon which it was based.

   b)whether there is a likelihood of the orders being varied in a significant way, as a result of a new hearing.

   c)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.

   [5] [2009] FamCAFC 152 at [50] and [58]

6. Their Honours proceed to summarise the process as follows: 

   That there be a requirement for the court:

   a)for a prima facie case of changed circumstances to have been established;  and

   b)for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.

7. This dual consideration in the court was further developed by the Full Court in DL & W[6], where their Honours considered an appeal from a federal magistrate at first instance dismissing a father’s application to re-agitate parenting matters where the federal magistrate had found “significant changes” in circumstances but, on consideration of the potential costs and benefits to the child from a new trial, had dismissed the application.

   [6] [2012] FamCAFC 5

8. The Full Court agreed with the federal magistrate at first instance in dismissing the appeal and said: 

   Thus, her ultimate decision to dismiss the father’s application can be seen as squarely resting on her consideration of the second step, which her Honour described as involving “assessment of the potential costs and benefits to [the child] from a new trial about her parenting arrangements”.

   The federal magistrate was right to embark on that assessment, since it was not only permitted but required by authority binding upon her.  We therefore do not accept the submissions advanced on behalf of the father that “once a change in circumstance is established, applications are to be determined in accordance with the legislative pathway set out in Goode & Goode”.  Nor do we accept the associated submission that the federal magistrate was obliged to undertake an assessment of all of the s 60CC factors before arriving at a decision.  We respectfully adopt the view expressed by Collier J in King & Finneran … that to require a court to undertake such an assessment would defeat the entire purpose of the “rule” in Rice & Asplund. 

Orders sought by the mother

1. The mother now seeks the following orders in respect of X and Y:

   a)that her Honour’s order having the children spend each second weekend with the father from Thursday afternoon until Monday morning be varied to read “every second weekend from the conclusion of school on Friday until 6 pm Sunday and that the father be required to take the children to one (1) extracurricular activity per child during this time”;

   b)that her Honour’s order providing for the children to spend overnights on Thursdays in the alternate week with the father be discharged;

   c)that her Honour’s order providing for the children to spend “half of all school holiday periods at times to be agreed” be varied to provide for strict detailed orders for school holidays;

   d)that her Honour’s order providing: unless otherwise agreed, each parent may telephone the children when the children are in the other parent’s twice each week at times to be agreed or, in default of agreement, each Tuesday and Saturday between 5 pm and 6 pm” have the added “…with the father to ensure his mobile phone is fully charged and in credit with the relevant service provider at such times and to ensure that the children take such call and are able to speak to their mother in private”;

   e)an additional injunctive order restraining the father “from otherwise communicating with the children by SMS, text, or other electronic means”;

   f)an order that the father be psychiatrically examined by Dr T “as to any mental health issue or disorder or otherwise that might affect the father and/or the children and in particular the father’s ability to promote the relationship of the children with the mother and the father’s insight or otherwise of his behaviour to the children and to the mother.

   g)that there be an updated family report by Ms M.

2. Counsel for the mother summarises her argument as to the alleged changes in circumstances has been set out in paragraph 8 of her affidavit of 19 June 2014.  They are:

   a ) The travel between the children’s school and the father’s home every Thursday night and Friday morning is too much for them. They find it stressful and exhausting;

   b) Y is suffering from anxiety that has required her being referred to a psychologist;

   c) The children are also required to travel 50kms to school each alternate Monday morning when they are staying with the father;

   d) There have been problems with homework not being completed when the children are in the father’s care, most particularly for X;

   e) The father continues to attempt to undermine my relationship with the children and to manipulate them to suit his own purposes. In particular by wanting changes to the orders and inappropriately involving the children in negotiating those changes with me. Examples of this behaviour took place on Y’s birthday and his birthday as set out below;

   f) The father and I are unable to resolve the most basic ambiguities in the court orders between us without the involvement of our lawyers. For example the father’s time over the school holidays and the recommencement of his time during school terms as set out below. The orders need to be redrafted to avoid any need for discussion over these issues;

   g) The father fails to communicate and advise as to the specific details when the children are ill and in his care particularly in relation to any treatment such as medication.

Consideration of the mother’s case

A. Onerous travel for the children

1. The mother says that travel on the alternate Thursday for one overnight is particularly onerous and of dubious benefit to the children.  She says that there are associated problems with the children completing their homework.  She says that the Thursday night travel had occurred on only a few occasions prior to her Honour’s orders and its effect and impact on the children was unknown to her Honour or the family reporter.  That travel during the school week now occurs on a weekly basis rather than fortnightly under a previous interim order and is proving onerous to the children and “has not worked”.

2. Her Honour’s Reasons as early as paragraph 1 set out the residential arrangements for the parties which, it is not disputed, remain unchanged.  The mother’s trial affidavit in the previous proceedings raised the issue of distance between the parties’ homes.  Ms M’s family report noted the parties living each in (omitted) and (omitted).  Similar issues were clearly raised with Ms M who notes at paragraph 23 of her report: 

   The current orders provide that the children are taken to school by Ms Letten at the conclusion of their time with her.  Travelling to school has not been a problem.  The children go to bed at regular times and are organised for attending school.  On the other hand she has been concerned about the children’s late bedtimes and irregular routines and has worried that they, especially X, are always tired.  Ms Letten’s employer was said to be very understanding and she has flexible hours to take the children to school and collect them.

3. And at paragraph 25 of that family report: 

   In the event that the children live with her, she would agree to the children spending time with the father in whatever arrangement the father would want, including alternate weekends from Friday to Monday and one night during the week, either overnight or for a meal.

4. Ms M’s recommendations were in accordance with her Honour’s orders save and except that the weekend time was to commence on the Friday rather than the Thursday.

5. At paragraph 39 of her reasons her Honour finds in respect of the practical difficulty and expense of the children spending time with or communicating with the parent: 

   This is not a relevant consideration as the children will spend every second weekend and extra night in the alternate week and half of all school holidays with the parent with whom they do not primarily live.  The travel time between the father’s home in (omitted) and the mother’s home in (omitted) is just over 50 kilometres which can take over 90 minutes travel in peak hour.  Although the distance is too great to have a fully shared arrangement, it is not so great as to make the arrangement for significant and substantial time unworkable.

6. I am satisfied that the issue of travel for these children was fully put before and considered by her Honour.  I accept that the current arrangement emanates in its fullest sense only from her Honour’s orders.  The mother adduces no corroborative evidence of any manifest effect on these children of the current arrangement.  The courts in such circumstances should be careful not to fall into a reconsideration of evidence given and adduced in the previous trial.  In this instance I am not satisfied that new evidence of the mother is of such weight that it constitutes a change in circumstance of the materiality or significance so as to justify a rehearing of the matter.  I will, of course, consider the weight of this matter cumulative with the other factors raised by the mother.

B.  Y’s anxiety and psychological intervention

1. The children’s emotional and psychological demeanour was firmly before her Honour for consideration.  The mother gave copious evidence as to her allegation of the father’s propensity to be emotionally abusive.  She gave evidence of the children’s anxiety.  The mother in her previous affidavit material specifically alleged that the father had caused the children to be anxious by reason of his denigration of the mother and by being uncooperative with transitions.

2. Ms M’s report makes it clear that she considered the demeanour of the parents.

3. Similarly Ms M noted and considered the children’s anxieties and their causes.

4. Y’s anxiety was before and considered by her Honour.  In any event, it is difficult to see how the mother’s concerns could be alleviated, if justified, given the relatively discrete changes she proposes to the orders.  That is, if the father does indeed denigrate the mother to the children then one would think only a complete cessation of time would resolve further problems.

5. I am not satisfied, therefore, that this complaint of the mother constitutes a change in circumstance or one of significance or materiality.  I am not satisfied that a further trial is justified given the nature of the orders sought by the mother.

C.  Incomplete homework

1. The mother raised this complaint at the previous trial.  It was mentioned in Ms M’s report.  It is noteworthy that, armed with this evidence, her Honour changed the children’s place of primary residence to the mother.  The proposal of the mother now, if successful, would remove two school nights per fortnight from the father’s care responsibilities.

2. I am not satisfied that this complaint of the mother is a change in circumstance.  I am not satisfied that the complaint is such that a further trial is justified. 

D.  Father’s undermining of the children’s relationship with the mother and using them as a conduit to vary the orders

1. The mother’s complaint as to the father’s denigration and undermining of her relationship with the children was squarely before the court and considered by Ms M.  Paragraph 71 of Ms M’s report of November 2013 states: 

   Each of the parties also makes allegations about the other in relation to the children.  Ms Letten had a number of concerns about the children living with the father.  She experienced considerable problems in spending time with them prior to the orders of the court.  The children attended irregularly, were unavailable and reluctant to spend time with their mother at (omitted) and according to her, the children have been exposed to a continuous campaign by Mr Pope of maligning her, inventing stories of abuse of the children and making them feel “unsafe in her care”.  She further claimed that they are encouraged to misbehave and not listen to her, not to speak about what happens at her home and that they, or at least X, have either read or have knowledge of the contents of the issues before the court.

2. Her Honour clearly considered this issue with the prime example being at paragraph 49 of her reasons. 

3. I am not satisfied that the mother’s complaint in this respect is a change in circumstance.  Again, the orders sought by the mother, whilst potentially diminishing the alleged conduct, would not rectify the situation so as to justify a further trial.

E. Alleged ambiguities in her Honour’s orders

1. This complaint relates to school holidays.  More particularly, it relates to the parties’ inability to communicate.  That latter consideration was quite obviously before the court, considered by Ms M, and taken into account by her Honour.  It is not a matter which justifies a further trial, at least in isolation.  The courts make orders, they do so with a view that parents will then have a framework so as to move on and cooperatively parent their children.  It is not for courts to adopt a patriarchal approach in assuming the examination and determination of each and every discrete issue for children until they reach 18 years.

2. Her Honour’s orders provide for half of school holiday periods and go so far as to dictate which half is for each parent.  This is not a new circumstance.  It does not justify further litigation.

F. The father’s alleged refusal to communicate when the children are ill

1. Paragraph 12 of her Honour’s orders deal with this discrete issue.  Her Honour clearly had evidence of and fact of the issue before her.  There was no evidence of any contravention proceedings which might well be the proper option should the mother have a complaint.  As such, this is not a change in circumstance.  It is not an allegation that justifies further litigation of parenting matters per se.

Conclusion

1. I am not satisfied that the particulars raised by the mother constitute a change in circumstance or one of sufficient significance.  With the exception of the alleged “ambiguity” in her Honour’s orders, each and every issue was put before her Honour for consideration.  They were matters clearly considered by the family reporter and in her Honour’s reasons.  Insofar as I am required to do so, even a cumulative consideration of the mother’s argument does not constitute a change in circumstance. 

2. The issue of interpretation of her Honour’s school holiday orders is not a new circumstance.  It is a factor of the problems of communication and cooperation that were identified and considered by her Honour.  I repeat, it is not for these courts to assume a patriarchal role. 

3. These parties and the children, vicariously, endured a six-day trial.  The children were interviewed for the purposes of the family report.  The nature of the evidence suggests that they were well aware of the fact of a dispute between their parents and probably the particulars of the dispute.  The orders sought by the mother would not, for all practical purposes, alleviate a number of the issues she raises.  A further trial would inevitably repeat or compound the very anxieties that the mother raises.  Her Honour’s orders were delivered a mere five months prior to the mother’s application and now only some eight months ago.  Regardless of my findings as any alleged change of circumstance, the matters raised by the mother do not justify further litigation for these children.

4. The application will be dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  12 September 2014