Radecki & Radecki
[2024] FedCFamC1A 246
•19 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
APPELLATE JURISDICTION
Radecki & Radecki [2024] FedCFamC1A 246
Appeal from: Radecki & Radecki [2024] FedCFamC2F 811 Appeal number: NAA 187 of 2024 File number: SYC 5418 of 2023 Judgment of: AUSTIN, CAREW & WILLIAMS JJ Date of judgment: 19 December 2024 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL Parenting – Where the appellant seeks leave to appeal against an order made dismissing his application to re-open parenting proceedings – Consideration as to whether s 65DAAA codifies the rule in In the marriage of Rice and Asplund (1979) FLC 90-725 (“the rule in Rice and Asplund”) – Clarification of the principles which apply to applications under s 65DAAA of the Family Law Act 1975 (Cth) – Whether the wording of s 65DAAA creates a meaningful distinction and departure from application of common law principles – Whether the Court is still required to make a finding about changed circumstances or alternatively, merely “consider” whether or not there has been any change – Where parliament’s intention was to codify the rule in Rice and Asplund – Where a literal interpretation of the wording of s 65DAAA is at odds with the purpose of the statute and leads to absurdity – No discernible difference between the threshold to be applied under the new statutory regime and the common law principles espoused by the rule in Rice and Asplund – Appealable error established – Leave to appeal granted – Remitted for rehearing of the application under s 65DAAA – Costs certificate granted. Legislation: Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB
Family Law Act 1975 (Cth) Pt VII, ss 60CC, 65D, 65DAAA
Family Law Amendment Act 2023 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 7, 8, 9
Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02
Family Law Amendment Bill 2023 (Cth)
Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth)
Second Reading Speech, Family Law Amendment Bill 2023 (Cth), Minister McCarthy, 13 June 2023
Cases cited: Allesch & Maunz (2000) 203 CLR 172; [2000] HCA 40
Babic and Taccini [2024] FCWA 203
Baisman & Cartmill [2022] FedCFamC1A 36
Baynor & Emmitt [2024] FedCFamC1A 164
Bretton & Bondai [2013] FamCAFC 168
Carriel & Lendrum (2015) FLC 93-640; [2015] FamCAFC 43
Carlyon & Graham [2024] FedCFamC1F 443
Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246; [1981] HCA 20
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26
Defrey & Radnor [2021] FamCAFC 67
Freeman and Freeman (1986) 11 Fam LR 293; [1986] FamCA 23
Hall v Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36
Halloran & Keats (2023) 66 Fam LR 640; [2023] FedCFamC1A 56
Hayman and Hayman (1976) 14 ALR 216
Katar & Sevan [2024] FedCFamC1A 49
Kelly v R (2004) 218 CLR 216; [2004] HCA 12
Licul v Corney (1976) 180 CLR 213; [1976] HCA 6
Marsden & Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Marsden v Winch (2013) (2013) 50 Fam LR 409; [2013] FamCAFC 177
McEnearney and McEnearney (1980) FLC 90-866; [1980] FamCA 43
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Melounis & Melounis (No 4) [2024] FedCFamC1F 778
Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150
Nevins & Urwin (2022) FLC 94-084; [2022] FedCFamC1A 57
Nootkamp & Brulja [2023] FedCFamC1A 90
Poisat & Poisat (2014) FLC 93-597; [2014] FamCAFC 128
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Rasheem & Rasheem [2024] FedCFamC1F 595
Rice and Asplund (1979) FLC 90-725; [1979] FamCA 80
Sciacchitano & Zhukov [2024] FedCFamC1A 224
Searson & Searson (2017) FLC 93-788; [2017] FamCAFC 119
Shan & Prassad (2020) 61 Fam LR 440; [2020] FamCAFC 189
SPS and PLS (2008) FLC 93-363; [2008] FamCAFC 16
Stern & Colli (2022) 65 Fam LR 548; [2022] FedCFamC1A 95
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
Whitehill & Talaska [2024] FedCFamC2F 768
Number of paragraphs: 143 Date of hearing: 19 November 2024 Place: Sydney Counsel for the Appellant: Ms Dart Solicitor for the Appellant: Doumit Family Lawyers Counsel for the Respondent: Ms Cantrall Solicitor for the Respondent: ATW Family Lawyers ORDERS
NAA 187 of 2024
SYC 5418 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR RADECKI
Appellant
AND: MS RADECKI
Respondent
ORDER MADE BY:
AUSTIN, CAREW & WILLIAMS JJ
DATE OF ORDER:
19 DECEMBER 2024
THE COURT ORDERS THAT:
1.Leave to appeal is granted.
2.The appeal is allowed.
3.Order 1 of the orders made 27 June 2024 is set aside.
4.The proceedings comprising suit number SYC 5418 of 2023 are remitted to the Federal Circuit and Family Court of Australia (Division 2) for re-hearing.
5.The appellant be granted a costs certificate pursuant to ss 8 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney General to authorise a payment under that Act to him in respect of the costs incurred by him in relation to the appeal and the rehearing.
6.The respondent be granted a costs certificate pursuant to ss 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney General to authorise a payment under that Act to her in respect of the costs incurred by her in relation to the appeal and the rehearing.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Radecki & Radecki has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN & WILLIAMS JJ
By an Amended Notice of Appeal filed 27 September 2024, the appellant seeks leave to appeal from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 27 June 2024 (“the appealed orders”).
At Part D of the Amended Notice of Appeal, the appellant appeals against both of the orders made by the primary judge, although the appeal was prosecuted only in relation to Order 1 of the appealed orders.
Order 1 of the appealed orders dismissed the appellant’s application, pursuant to s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”), to revisit parenting orders in respect of the parties’ child, which were made on an undefended basis in December 2015 when the child was two years old. The respondent initially resisted the application for leave to appeal but later contended the grant of leave was unnecessary.
For the reasons which follow, leave to appeal will be granted to the appellant, the appeal will be allowed, and the matter will be remitted for rehearing of the application under s 65DAAA of the Act.
BACKGROUND
The parties commenced their relationship in 2011, married in 2012, and separated in early February 2014.
There is one child of their relationship, X (“the child”) born in 2013, who at the time of the hearing before the primary judge was 11 years old. He is now nearly 12 years old and attends a local public school.
Subsequent to separation, the respondent filed an Initiating Application in the Federal Circuit Court of Australia, which proceedings were concluded by final orders made on 3 December 2015 (“the 2015 orders”), when the child was two years of age.
The 2015 orders provided for the child to live with the respondent, and to spend time with the appellant for a maximum of one night per fortnight. Notation B to the 2015 orders was as follows:
That it is intended by the [respondent] that these orders will be reviewed by the parties no less than three months prior to [the child] commencing school and that the [respondent] proposes that the parties attend mediation in order to discuss further Orders.
It is common ground between the parties that the 2015 orders were made following a short undefended hearing before the judge, where the appellant did not appear. There was no hearing on the merits, no expert evidence, and there is an extant issue whether the precise orders were ever served upon the appellant.
According to [9] of the primary judge’s reasons, the appellant became self-represented on 17 April 2014 because he and the respondent were living together in a family unit and had a good coparenting relationship. He dispensed with his legal representation relying on a conversation with, and representations from the respondent, that there was no need to pursue court proceedings, because things were “working fine” for the family. Prior to the respondent’s representations, the appellant had actively engaged in the proceedings via his lawyers.
On 6 February 2015, the respondent’s solicitors forwarded a letter to the appellant enclosing a copy of the proposed orders stating (at [9]):
We note that the Orders provide for a gradual increase in time between you and [the child] until he has five years of age. At that time, the orders continue in place although our client notes that the orders may need to be reviewed given [the child’s] age and the likelihood he will be at school.
At the time the orders were made, the judge was informed the relationship between the parties was “quite good given the circumstances” (at [9]). When the judge raised the future arrangements for the child upon commencement of school, she was informed that the parties would likely work it out because they had “a very good relationship”.
The appellant asserts that for several years leading up to September 2022, the child spent time with him in excess of what was prescribed by the 2015 orders. The appellant also attended the child’s sporting activities and training sessions. In September 2022, the respondent ended the cordial arrangement between them and threatened to call the police if the appellant attended the child’s sporting events.
The respondent accepted she did not comply with the December 2015 orders between September 2022 and September 2023, but that was “a consequence of the [appellant’s] own conduct and behaviour” (at [11]), including regular engagement between the appellant and the police arising from intoxication, the appellant’s history of drug use and criminal activity whilst intoxicated (at [34]).
On 26 July 2023, the appellant filed an Initiating Application commencing the proceedings before the primary judge seeking an increase in his time with the child, broadly speaking, to five nights per fortnight during school term, half school holidays, and special occasions (at [9]).
In September 2023, the respondent permitted the child to resume spending time with the appellant, generally consistent with the 2015 orders.
On 30 August 2023, the respondent filed a Response seeking the appellant’s Initiating Application be dismissed pursuant to “the rule in Rice and Asplund”, established by In the marriage of Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”).
The hearing before the primary judge took place on 24 May 2024 by way of submissions on evidence which was unchallenged by cross-examination. On 27 June 2024, the primary judge made an order dismissing the appellant’s Initiating Application and delivered reasons.
LEAVE TO APPEAL
In his Amended Notice of Appeal, the appellant sought leave to appeal. In her Summary of Argument, the respondent agreed leave to appeal is required, however during the hearing of the appeal, her counsel resiled from that position and submitted leave to appeal was not required, because the appealed order was a parenting order.
Section 28(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) provides that leave is required to appeal a prescribed judgment of the Federal Circuit and Family Court of Australia (Division 2).
Regulation 4.02 (1)(a) of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) (“the Regulations”) defines a prescribed judgement as an interlocutory decree (other than a decree in relation to a child welfare matter).
Whether an order is final or interlocutory is determined by applying the following test: does the judgment or order, as made, finally dispose of the rights of the parties (Licul v Corney (1976) 180 CLR 213 (“Licul v Corney”) at 225). In applying that test, regard must be had to the “legal rather than practical effect of the judgment” (Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 (“Carr v Finance Corporation of Australia Ltd”) at 248).
Regulation 4.02(2) of the Regulations defines a child welfare matter as a matter relating to the following:
(a) the person or persons with whom a child is to live;
(b) the person or persons with whom a child is to spend time or communicate;
(c)any other aspect of parental responsibility (within the meaning of Pt VII of the [Act] for a child.
The appealed order, dismissing an application for parenting orders, is not itself a parenting order and hence not a decree in relation to a “child welfare matter” as defined in the Regulations (Nootkamp & Brulja [2023] FedCFamC1A 90 at [5]–[12]; Baynor & Emmitt [2024] FedCFamC1A 164 at [17]; Babic and Taccini [2024] FCWA 203 (“Babic and Taccini”) at [19]).
The appealed order is interlocutory because the order does not finally dispose of the rights of the parties. The order dismissing the appellant’s application before the primary judge does not prevent a further application if there are further changes of circumstances.
Leave to appeal is therefore required.
The test to be applied in applications for leave to appeal is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the appellate court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong (Medlow & Medlow (2016) FLC 93-692 (“Medlow”)).
In order to determine whether the decision is attended by sufficient doubt to warrant reconsideration, it is necessary to consider the merits of the appeal by reference to the grounds relied upon (Medlow).
ISSUES RAISED BY THE APPEAL
Prior to consideration of the remaining ground of appeal, with Grounds 2 and 3 having been abandoned during the hearing of the appeal, we turn to broader issues raised by the appeal.
The appeal concerns s 65DAAA of the Act, which was intended to codify the common law rule in Rice and Asplund as elaborated in subsequent authorities. This appeal provides an opportunity to clarify the principles which apply to applications under s 65DAAA of the Act, as raised by the primary judge at [87] and [97] of the reasons for judgement, where his Honour said:
87.There is one final matter that needs to be addressed before proceeding. Rightly, Counsel for the Father emphasised that under s.65DAAA, the Court is required “to consider” certain things set out in the various parts of this new section in the Act. Perhaps somewhat surprisingly, there was no mention what, according to authority, it actually means for a Court “to consider.” …
…
97.Sub-section (1)(a) requires the Court to consider whether there has been a “significant change in circumstances” since the final parenting Order was made. I need not, and will not, repeat the earlier comments regarding what it means “to consider”, or the multiple decisions discussed above regarding how Courts have looked at what is and what is not a relevant “significant change in circumstances.” I will repeat, however, that such inquiry involves, as best the Court can do, a consideration of facts without necessarily making any formal findings, again emphasising as the cases above have been at pains to point out, that such consideration(s) necessarily involve an important but still somewhat broad but not untrammelled discretion.
(Emphasis in original)
The controversy which has arisen since the introduction of the amendments to the Act is whether the wording of s 65DAAA creates a meaningful distinction and departure from application of common law principles or whether it codifies the common law principles.
A literal reading of “consider” in s 65DAAA(1)(a), contrary to the rule in Rice and Asplund, does not require a change of circumstances nor mandate the Court to make a finding of fact about a prima facie change of circumstances, rather the requirement is to “consider” whether or not there has been a change of circumstances.
In practical terms, whilst applying the first stage of the rule in Rice and Asplund, the dilemma is whether the Court is still required to make a finding about changed circumstances or alternatively, merely “consider”, whether or not there has been any change.
The appeal did not raise any controversy about differences between the application of the second stage of the rule in Rice and Asplund, and s 65DAAA(1)(c) or (2), nor challenge the principle that the rule can be applied at any stage of the proceedings (see Baisman & Cartmill [2022] FedCFamC1A 36 at [11] per Tree J). In exercising its discretion, the Court is still required to be satisfied it is in the best interests of the child for the final parenting orders to be reconsidered.
We turn then to consider the rule in Rice and Asplund.
The rule in Rice and Asplund
Orders made in parenting proceedings are never unequivocally final, because the Court is empowered by s 65D(2) of the Act, to discharge, vary, suspend or revive some or all parenting orders. Parenting orders can be varied by consent of the parties or by a court determination. Parenting orders are only “final” in so far as they determine an existing cause of action brought under Pt VII of the Act.
Prior to the commencement of recent amendments to the Act on 6 May 2024, common law principles applied to applications which sought a variation of final parenting orders in contested proceedings. A threshold test was applied, which required a material change of circumstances since the making of the final orders, prior to a court considering whether to permit such an application, whilst always taking into account the best interest’s considerations.
The threshold test was first enunciated by the Full Court of the Family Court in In the Marriage of Hayman (1976) 14 ALR 216 (“Hayman”), where the majority of the Full Court held that an unsuccessful litigant in a parenting dispute could not repeatedly return to court, in order to obtain a more favourable outcome. In order to succeed, it must be established there has been a material change in circumstances, since the previous hearing.
That approach was approved and adopted by the Full Court in Rice and Asplund, where Evatt CJ, with whom Pawley SJ and Fogarty J agreed, stated the rule in the following terms (at 78,905):
[The court] 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 … there is some changed circumstance which will justify such a series step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…
The public policy considerations underpinning the rule were stated by Nygh J in McEnearney and McEnearney (1980) FLC 90-866 at 75,499:
… 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 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.
In the Marriage of Freeman (1987) FLC 91-857 at 76,470–76,471, Strauss J explained the rationale behind the rule:
… The welfare of children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. Another important reason for approaching with some care an application to overturn such a recent order is that the proper and orderly administration of the law in the community of which these children are part requires that orders made in this jurisdiction should not be overturned unless sufficiently weighty new facts and circumstances are shown to exist which throw sufficient doubt on the desirability of continuing the custodial arrangements brought about by the order. Each case must depend on its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children.
The High Court of Australia (McHugh, Gummow and Callinan JJ in CDJ v VAJ (1998) 197 CLR 172), although in the context of whether to permit a party to adduce further evidence, identified the adverse impact on children of continuing litigation and said at [118]:
… 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 uncertainty of prolonged and repetitive proceedings.
The rule in Rice and Asplund has been routinely followed ever since its enunciation, and has been the subject of judicial consideration, elaboration and clarification.
The requirement to make a finding of change of circumstances, however variously described, when applying the first stage of the rule, has been approved and followed in decisions subsequent to Rice and Asplund.
Warnick J said in SPS and PLS (2008) FLC 93-363 (“SPS and PLS”), at [84] that the essential question to be asked is, assuming the evidence of the appellant is accepted, are the “new events” sufficient to provoke a new enquiry.
In Miller & Harrington (2008) FLC 93-383 the Full Court said at [105]:
Adapting the language used by Warnick J in SPS and PLS [supra], the question for consideration is: assuming the evidence of the [appellant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?
(Citations omitted)
The Full Court said in Marsden & Winch (2009) 42 Fam LR 1 (“Marsden & Winch”) at [58]:
That question might be better formulated in another way in the following proposition, 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 Bretton & Bondai [2013] FamCAFC 168, May J at [106] referred to the first requirement (of the rule), as “that there be a prima facie case”.
In Carriel & Lendrum (2015) FLC 93-640 the Full Court of the Family Court at [63] referred to “whether or not a sufficient change of circumstance to warrant further litigation was demonstrated”.
In Searson & Searson (2017) FLC 93-788 at [16] and Shan & Prassad (2020) 61 Fam LR 440 at [41] the remarks of the Full Court in Marsden & Winch were applied.
More recently, in Defrey & Radnor [2021] FamCAFC 67 at [22] (“Defrey & Radnor”) the Full Court of the Family Court (Ainslie-Wallace, Watts and Tree JJ) articulated the practical application of the rule thus:
… The primary judge’s task was a two staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the of the 2015 orders and secondly, to assess whether or not the [appellant] had established that these changes are sufficient to provoke a new inquiry, or put in another way, whether the [appellant] has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child’s best interests.
The statement of the principle was approved and adopted by the Full Court of this Court (Austin, Tree and Jarrett JJ) in Stern & Colli (2022) 65 Fam LR 548 at [35].
In Halloran & Keats (2023) 66 Fam LR 640, applying the relevant principles articulated in Defrey & Radnor, Austin J (sitting alone exercising appellate jurisdiction) said at [28]:
… whenever any litigant applies to vary a parenting order, he or she must first demonstrate a material change in circumstances to warrant the variation application being entertained.
(Citations omitted)
In Katar & Sevan [2024] FedCFamC1A 49 Campton J (sitting alone exercising appellate jurisdiction) at [48] approved of the summary of the law concerning Rice and Asplund as stated by the Full Court in Defrey & Radnor.
Turning now to s 65DAAA of the Act and its interpretation.
Section 65DAAA of the Act
Section 65DAAA of the Act provides:
Reconsideration of final parenting orders
(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a)the reasons for the final parenting order and the material on which it was based;
(b)whether there is any material available that was not available to the court that made the final parenting order;
(c)the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d)any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
(3)Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
(4)The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
Subsequent to the commencement of s 65DAAA in May 2024, there have been divergent first instance decisions concerning possible conflict between the statute and the common law rule in Rice and Asplund about the first step actually required of a court, when determining whether to permit an application to revisit anterior final parenting orders.
On the one hand, Schonell J in Carlyon & Graham [2024] FedCFamC1F 443 (“Carlyon & Graham”) concluded there was no difference between the common law principles and s 65DAAA. At [45] his Honour said:
The operative section is conjunctive and mandates that the Court must not reconsider a final parenting order unless it has considered whether there has been a significant change of circumstances since the final parenting order was made and the Court is satisfied that in all of the circumstances taking into account whether there has been a significant change of circumstances that it is in the best interests of the child for the parenting order to be reconsidered. Section 65DAAA(2) provides a non-exhaustive list of matters that the Court may consider in determining whether or not it is in the best interests of the child for the final parenting orders to be reconsidered.
Conversely, Altobelli J in Rasheem & Rasheem [2024] FedCFamC1F 595 (“Rasheem”) and Melounis & Melounis (No 4) [2024] FedCFamC1F 778 (“Melounis”), and Judge O’Shannessy in Whitehill & Talaska [2024] FedCFamC2F 768 (“Whitehill & Talaska”), partially relying on the definition of “consider” in the Oxford Dictionary (2nd edition), adopted a literal interpretation of the word “consider” in s 65DAAA(1) to the dictum. Their Honours concluded the statute now mandates the Court to reconsider final parenting orders even in cases where a significant change in circumstances has not occurred, but it is otherwise in the child’s best interests for a reconsideration to occur. In other words, there is no requirement to make a finding about changed circumstances, and the failure of an appellant to establish there has been a significant change of circumstances since the making of anterior parenting orders, is not dispositive of the fresh application. The obligation is supposedly to merely consider whether there has been a change of circumstances, without more. But then what would be the point of the consideration or ponderance?
O’Brien J in Babic and Taccini said the relevant common law principles are unchanged and observed at [16]:
… the proper application of s 65DAAA still requires a clear focus on just what change of circumstances is said to have occurred since the making of the final orders, and the circumstances in which those orders were made. While the considerations in s 65DAAA are neither mandated nor exclusive, their purpose is clear.
In the context of referring to the decisions of Rasheem and Whitehill & Talaska, His Honour then said at [17]:
In my respectful view, the departure accurately identified by their Honours is a distinction without a meaningful difference.
Most recently in Sciacchitano & Zhukov [2024] FedCFamC1A 224 (“Sciacchitano & Shukov”), Aldridge J (sitting alone exercising appellate jurisdiction) said at [11] and [13]:
11. Further, if s 65DAAA did not require a finding that there had been a change of circumstances it would be otiose and the whole section pointless.
…
13.I therefore would have grave misgivings about following [Rasheem, Melounis and Whitehill & Talaska] but do not need to come to a concluded view.
For the reasons that follow, we consider there is no discernible difference between the first stage test or threshold to be applied under the new statutory regime, and the common law principles espoused by the rule in Rice and Asplund.
The starting point for statutory interpretation is s 15AA of the Acts Interpretation Act 1901 (Cth) (“the Interpretation Act”) which states:
15AA Interpretation best achieving Act’s purpose or object
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is it expressly stated in the Act) is to be preferred to each other interpretation.
As to the approach to be adopted in statutory interpretation, in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, (“Cooper Brookes”) Gibbs CJ observed at 304:
… There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction and not so rigid as to prevent a realistic solution in such a case: see per Lord Reid in Connaught Fur Trimmings Ltd v Cramas Properties Pty Ltd [1965] 1 WLR 892 at 899…
In Cooper Brookes, Mason and Wilson JJ said at 320–321:
… Generally speaking, mere inconvenience of result in itself is not a ground for departing from the natural and ordinary sense of the language read in its context. But there are cases in which inconvenience of result or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute.
…
In some cases in the past these rules of construction have been applied too rigidly. The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.
The rules, as D C Pearce says in his Statutory Interpretation p 14, are no more than rules of common sense, designed to achieve this object. They are not rules of law. If the judge applies the literal rule it is because it gives emphasis to the factor which in the particular case he thinks is decisive…
On the other hand, when the judge labels the operation of the statute as “absurd”, “extraordinary”, “capricious”, “irrational” or “obscure” he assigns a ground for concluding that the Legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.
In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 the High Court of Australia (per McHugh, Gummow, Kirby, and Hayne JJ) explained the modern approach to statutory interpretation:
69.The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
70.A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
(Footnotes omitted)
In Kelly v R (2004) 218 CLR 216, McHugh J referred to purposive construction (in the context of admissibility of a statement made to police after video recording interview was complete). At [98] his Honour said:
… Legislative enactments should be construed so as to give effect to their purpose even if on occasions this may require a “strained construction” to be placed on the legislation. The literal meaning of the legislative text is the beginning, not the end, of the search for the intention of the legislature. As Learned Hand J famously pointed out:
“Of course it is true that the words used, even in the literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.”
(Footnotes omitted)
At [103] his Honour continued:
As I earlier pointed out, the function of a definition is not to enact substantive law. It is to provide aid in construing a statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better – I think the only proper – course is to read the words of the definition into the substantive enactment and then construe the substantive enactment – in its extended or confined sense – in its context and bearing in mind its purpose and the mischief that it was designed to overcome…
As observed by the Full Court of this Court (per Alstergren CJ, McClelland DCJ, Austin, Bennett and Cleary JJ) in Nevins & Urwin (2022) FLC 94-084 at [30]:
The High Court has more recently affirmed that approach in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362…saying (per Kiefel CJ, Nettle and Gordon JJ):
14.The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. …
In order to assist interpretation of the statute, the Court may have regard to extrinsic evidence (s 15AB of the Interpretation Act) which encompasses any Explanatory Memorandum or parliamentary speech (s 15AB(2)(e) of the Interpretation Act).
The Explanatory Memorandum to the Family Law Amendment Bill 2023 (“the Amendment Bill”), which preceded the enactment of the new legislation, explained the context and purpose of the statute, which is to codify the common law rule established by Rice and Asplund and said (at 28):
97.New section 65DAAA codifies the common law rule established by Rice and Asplund (1979) FLC 90-725 and elaborated on in subsequent cases, that is, where final parenting orders are in place the applicant must establish that there has been a significant change of circumstances since the making of the orders before those orders can be reconsidered [Rice and Asplund; Marsden & Winch; Marsden v Winch (2013) 50 Fam LR 409 (“Marsden v Winch”); SPS and PLS]. The rule is founded on the notion that continuous litigation over a child or children is generally not in their best interests [Marsden & Winch at [49]; Marsden v Winch at [36].
There is no ambiguity to be found in the Explanatory Memorandum, which specifically refers to both the intention to codify the common law rule established by Rice & Asplund and the first stage of application of the rule, requiring an applicant to establish that there has been a significant change in circumstances since the making of anterior parenting orders, before those orders can be reconsidered. A literal interpretation of the wording of s 65DAAA, as adopted in Rasheem, Whitehill & Talaska, and Melounis, is at odds with and conflicts with the context and purpose of the statute, as stated in the Explanatory Memorandum.
Having regard to the authorities cited in in the footnotes to the Explanatory Memorandum, in both Rice and Asplund and Marsden & Winch, the Full Court articulated the requirement for a prima facie case of changed circumstances to have been established. Neither authority refers to or even contemplates divergence from the Court’s obligation to embark on a fact-finding exercise as to changed circumstances and instead engage in consideration of whether or not there has been a change of circumstances, without reaching a definitive conclusion.
The Second Reading Speech to the Amendment Bill on 13 June 2023 also referred to the purpose of the amendments to the Act as follows:
… codifies existing case law about reconsideration of parenting orders, making it clear that it must be in the best interests of a child, and a significant change in circumstances must have occurred, for an existing parenting order to be reconsidered.
(Commonwealth, Parliamentary Debates, Senate, 13 June 2023 (Malarndirri McCarthy, Minister for Indigenous Australians)
The wording of the Second Reading Speech, and in particular “making it clear… a significant change in circumstances must have occurred”, is similarly at odds with a literal interpretation of s 65DAAA adopted in Rasheem, Melounis and Whitehill & Talaska. The comments make it abundantly clear, a significant change in circumstances is a mandatory precursor for a parenting order to be reconsidered. Like the Explanatory Memorandum, the Second Reading Speech does not refer to diminution or displacement of the Court’s obligation to make a finding of a significant change in circumstances and replace it with a consideration of whether or not change has occurred.
Relying on permissible extrinsic evidence, or “legitimate aids to construction”, in this case, the Explanatory Memorandum, including cited authorities and the wording of the Second Reading Speech, the context and purpose of the new statute was to codify the rule in Rice and Asplund and existing case law. It was not to ameliorate or modify the rule, by removing the requirement to make a factual finding about a significant change in circumstances in the application of the first stage. In that context, it is a misconception to apply the text of s 65DAAA so literally to only require a court to embark upon a consideration of whether or not there has been a change of circumstances, but without imposing an obligation to make a positive finding about that pivotal issue.
The decisive factor in rejecting the literal interpretation of “consider” is because to do so results in an operation of s 65DAAA which, adopting the terminology of relevant authorities, is absurd, irrational, and capricious, contrary to Parliamentary intention and may result in unintended undesirable consequences, as observed above. In other words, s 65DAAA would not rectify the mischief, being unfettered applications to revisit parenting orders, to which it is directed.
We therefore conclude, for the purposes of s 65DAAA(1) of the Act, and having regard to the principles espoused in Rice and Asplund and subsequent authority, the proper interpretation of “consider” should not be a literal one. The word “consider” in s 65DAAA should be construed to mean the Court is required to contemplate the evidence and to make findings of fact as to what changes in circumstances (if any) there have been since the making of the anterior parenting orders. If there is no positive finding of changed circumstances, that is the end of the matter. If there is a positive finding as to changed circumstances, the second stage of the process requires the Court to make its determination, subject to the overarching best interests principle, as prescribed by s 65DAAA(1)(b) and otherwise having regard to relevant s 60CC considerations and the matters referred to in s 65DAAA(2).
We also explicitly reject the proposition, articulated in Melounis at [183]–[190], that in and of itself the amended legislation may be considered a change of circumstances.
Turning then to the remaining ground of appeal.
THE APPEAL
Ground 1
The finding of the learned trial judge that there had not been a significant change in circumstances since final parenting orders were made on an undefended basis in December 2015 was not open on the evidence and plainly wrong
Under this ground, the appellant complains the primary judge erred in the first stage of the required two-step process, namely fact-finding as to what changes there had been in circumstances since the making of the 2015 orders.
The appellant contends the primary judge was plainly wrong to find that both the breakdown of the prior cooperative parenting relationship between the parties and the effluxion of time since the making of the operative orders, did not constitute a significant change in circumstances.
At [98] the primary judge summarised the arguments advanced by the appellant pertaining to a change of circumstances. The primary judge noted that the child and parents were obviously older than when orders were made in December 2015, and the child’s interests were broader and different. While there had been regular and significantly more time between the appellant and the child from 2015 until 2022, more recently there had been a reversion to strict compliance with the December 2015 orders. The appellant made a single and un-particularised reference and acknowledgement of history of drinking to excess.
Nowhere in his summary did the primary judge refer to the circumstances of the making of the December 2015 orders, the letter from the respondent’s solicitor to the appellant in February 2015 and Notation B to the December 2015 orders, which collectively would have given rise to an objective expectation that the orders would be revisited at a later date, and in particular after the child commenced school.
At [99] the primary judge summarised the arguments advanced by the respondent. The respondent contended the December 2015 orders were still appropriate having regard to the appellant’s significant history of alcohol use, history with the police, and problematic behaviour with his family. The respondent focused on the issue of safety for the child, whilst purportedly supporting the relationship between the appellant and the son. The respondent also relied upon the failure of the appellant to bring an application regarding the existing orders between 2015 and 2023, when he filed the proceeding before the primary judge.
Taking into account the representations made to the judge in December 2015, the notation to the December 2015 orders, and the letter written by the respondent’s then lawyer to the appellant, it is unarguable the parties expressly contemplated variation of those orders within a couple of years. Thereafter the parties were able to negotiate parenting arrangements without needing to vary the orders, but the termination of their conciliatory approach prompted the new proceedings by the appellant. We accept the primary judge was obliged to find the destruction of the former cooperative parenting arrangement between the parties, the substantial effluxion of time, and the child’s much greater maturity were, in combination, significant changes in circumstances which satisfied and engaged s 65DAA(1)(a) of the Act. The failure of the appellant to bring an application to vary the December 2015 orders prior to September 2022 is readily explained by his reliance on the parties’ ability to negotiate parenting arrangements until then. His Honour was wrong to find there had been no significant change in circumstances at [101]–[104] as required by the first stage of s 65DAAA. The error was material because it resulted in the dismissal of the appellant’s parenting application. This ground has merit.
CONCLUSION AND DISPOSITION
As noted earlier, given the merit of the remaining ground of the appeal and the identified legal error of the primary judge, it is necessary to return to the question of leave.
We are satisfied that substantial injustice would be suffered by the appellant if he were denied the opportunity to prosecute a meritorious appeal. If leave were not granted, he would be denied the opportunity to pursue an application to vary the orders made in December 2015, in circumstances where we are persuaded the primary judge should have found a significant change in circumstances and failed to apply the correct legal principles for the first stage of the process prescribed by s 65DAAA of the Act. We will grant the appellant leave to appeal and will allow the appeal.
The parties agreed remitter of the proceedings was necessary in the event leave to appeal was granted and the appeal allowed, not least because they envisaged leading further evidence, as the law permits (Allesch & Maunz (2000) 203 CLR 172 at 183 and 191–192).
COSTS
The appeal is allowed for errors including an error of law, in which event the parties are granted costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) as they sought.
CAREW J:
This is an application for leave to appeal, and if granted, an appeal against a judgment by a judge of the Federal Circuit and Family Court of Australia (Division 2), dismissing a father’s application to vary a parenting order made on 3 December 2015 (“the final parenting order”) in relation to a child who was at the time of the final parenting order two years of age.
For reasons which will be discussed, leave to appeal should be granted and the appeal allowed. The father’s application to vary the final parenting order should be remitted for re-hearing.
RELEVANT BACKGROUND
The final parenting order was made in relation to a child, X, born in 2013. The child is the only child of Mr Radecki (“the father”) and Ms Radecki (“the mother”).
The final parenting order was made on an undefended basis and made provision for a graduated increase in time to be spent between the father and child, but to a maximum of one overnight per fortnight and for several hours on another day. While not enforceable, the order included a provision for additional time to be spent between the child and the father “as may be agreed”.
The final parenting order included the following notations:
c.The Mother advises the Court that the parties have a cooperative co-parenting relationship, and it is anticipated that they will continue to work together in [the child’s] best interests …
…
B.That it is intended by the Mother that these Orders will be reviewed by the parties no less than three months prior to [the child] commencing school and that the mother proposes that the parties attend mediation in order to discuss further Orders.
It is common ground that until September 2022, the father and mother did agree for additional time to be spent between the father and the child including overnights but that from September 2022, for a period of 12 months, the mother withheld the child from spending any overnights with the father. Further, it is not in contention that upon the father commencing proceedings to vary the final parenting order, the child’s time with the father recommenced to include overnight time but only in strict compliance with the final order i.e., one overnight per fortnight.
LEAVE TO APPEAL
Pursuant to s 28(1)(b) of the FCFCOA Act, leave is required to appeal from a “prescribed judgment” of the Federal Circuit and Family Court of Australia (Division 2). A judgment is defined in s 7 of the FCFCOA Act to mean “a judgment, decree or order, whether final or interlocutory … and includes a decree within the meaning of the Family Law Act 1975”.
Relevantly, reg 4.02(1)(a) of the Regulations provides that a prescribed decree includes an interlocutory decree other than a decree in relation to a child welfare matter.
Regulation 4.02(2) defines a child welfare matter as a matter relating to the following:
(a) the person or persons with whom a child is to live;
(b) the person or persons with whom a child is to spend time or communicate;
(c)any other aspect of parental responsibility (within the meaning of Part VII of [the Act]) for a child.
The judgment appealed from is not a judgment in relation to a child welfare matter as defined.
While identifying whether an order is an interlocutory order can sometimes be challenging (Licul v Corney at 446 and 451; Carr v Finance Corporation of Australia Ltd at 248), it is well established that the test as to whether an order is final or interlocutory, is whether the order finally determines the rights of the parties (Hall v Nominal Defendant (1966) 117 CLR 423; Licul v Corney; Carr v Finance Corporation of Australia Ltd). The test looks at the legal effect of the decree, not its practical consequences (Carr v Finance Corporation of Australia Ltd at 248).
Although the order dismissing the father’s application to vary the final parenting order disposed of that application, it does not finally determine the rights of the parties because it is possible for a further application to be filed even though such an application might have very little prospect of success (Carr v Finance Corporation of Australia Ltd at 248).
Leave to appeal is required.
The father must establish not only appealable error but, as a threshold issue, that the primary judge’s decision is “attended by sufficient doubt to warrant reconsideration” and that “substantial injustice” would occur if leave is refused (Medlow at [55]–[57]).
In support of leave being granted, the father submits, among other things, that:
5. …
a.The trial judge did not properly engage with the new statutory test provided for in s 65DAAA and in particular erroneously considered his determination as to whether there had been a significant change of circumstances as determinative of the application without undertaking the separate assessment of the best interests of the child as mandated by s 65DAAA(1)(b)
Turning then to consider the grounds of appeal.
GROUNDS OF APPEAL
Ultimately, only one ground of appeal was pressed, namely:
The finding of the learned trial judge that there had not been a significant change in circumstances since final parenting orders were made on an undefended basis in December 2015 was not open on the evidence and plainly wrong.
In the substantive proceedings, the father sought to vary the final parenting order by, among other things, substantially increasing the time he spends with the child.
In considering the father’s application to vary the final parenting order, and after setting out the provisions of s 65DAAA of the Act, (which are reproduced at [117] of these reasons) the primary judge said at [9] of his Honour’s reasons:
9.The Annexure to the Father’s Case Outline, filed 22nd May 2024, provides a helpful outline of facts and legal principle. That Annexure is set out below:
…
9.Accordingly, before the Court can reconsider the 2015 Orders, 2 conditions must be satisfied being:
a)The Court must “consider” (not make a finding) whether there has been a significant change of circumstances since the 2015 Orders; and
b)The Court must be satisfied that in all the circumstances, it is in [the child’s] best interests for the 2015 Orders to be reconsidered.
10.As noted, there is no requirement the Court make a positive finding of a significant change of circumstances. The only requirement upon the Court is to consider whether there has been such a change.
(Footnote omitted)
The appeal necessarily involves a consideration of the application of s 65DAAA but firstly it will be helpful to review the law relating to the variation of a final parenting order prior to the insertion of s 65DAAA in the Act which came into effect on 6 May 2024. Section 65DAAA is intended to codify the law that has been applied for decades and generally referred to as the rule in Rice and Asplund.
It is trite to observe that courts exercising jurisdiction under the Act have the power to vary an earlier parenting order. Section 65D provides as follows:
(1) In proceedings for a parenting order, the court may, subject to section 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.
(2)Without limiting the generality of subsection (1) and subject to section 65DAB (parenting plans) and this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.
(Notes omitted)
The application of this power has for decades been circumscribed by the rule in Rice and Asplund, which is the shorthand reference to the oft quoted paragraph from the judgment of Evatt CJ (with whom Pawley SJ and Fogarty J agreed) set out below (at 78,905–78,906):
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 (passage quoted in [Hayman] at p. 75,680). These are not necessarily matters for a 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 best be served. These principles apply whether the original order 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.
(Emphasis added)
While there has been some discussion over the decades since Rice and Asplund about whether it is a ‘guideline’ rather than a ‘rule’ (see, for example, Poisat & Poisat (2014) FLC 93-597 at 79,387), there can be no doubt that the principles emanating from Rice and Asplund have been applied, either at a preliminary stage to ensure that children are not needlessly exposed to repeated litigation, or after a full hearing in order to ensure that a final order is not varied simply because a judge in a later hearing would, in the exercise of their discretion, not have made the final order in the terms made. Obviously, the application of the rule at a preliminary stage will have a greater impact as it will bring the proceedings to an end. More often than not, the rule has been applied at a preliminary stage of the proceedings.
It was observed by Warnick J in SPS and PLS (at [45] and [48]), and it remains the case, that the “discussion of the rule has not always used consistent terminology” and that “[t]he consequences of [applying the rule at the end of a full “custody” hearing] have received little attention”. It is also important to restate what has been expressed many times in the authorities following Rice and Asplund, namely, the application of the rule “should remain merely a manifestation of the “best interests principle” (see, for example, SPS and PLS at [48(iii)]).
The rule in Rice and Asplund requires two things to be established. First, that there has been some changed circumstance (variously described as material, substantial, significant) based upon the evidence relied upon by the applicant taken at its highest and often referred to in the authorities that followed Rice and Asplund, as a prima facie case of significant change. Second, that the change in circumstances identified requires a reconsideration of a final order which may or may not result in a “reversal” of what was at the time of Rice and Asplund called “custody” and is now the “live with” provisions. The application of the rule since Rice and Asplund has certainly extended beyond the narrow confines of “reversal of custody” to include any substantial change to the final parenting order. However, the rule was not intended to prevent the reconsideration of minor changes to a final order. As explained by Warnick J in SPS and PLS (at [48(v)]), “[t]he application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order”.
The principles emanating from Rice and Asplund were intended to be codified by the insertion of s 65DAAA into the Act which provides as follows:
Reconsideration of final parenting orders
(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a)the reasons for the final parenting order and the material on which it was based;
(b)whether there is any material available that was not available to the court that made the final parenting order;
(c)the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d)any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
(3)Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
(4)The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
There has been some disagreement at first instance in this Court (see, for example Rasheem; Carlyon & Graham) and in other courts exercising jurisdiction under the Act (see Babic and Taccini; Whitehill & Talaska) about whether s 65DAAA codifies or varies the rule in Rice and Asplund. As already noted at [110] above, the primary judge adopted the view put forth by the father, and as expressed by some other judges, that s 65DAAA varied the rule in Rice and Asplund.
In the Federal Circuit and Family Court of Australia (Division 2), Judge O’Shannessy said in Whitehill & Talaska, at [12]:
The starting point is that the Court “must not reconsider the final parenting order unless…”, and those words must be given meaning. But on its face, section 65DAAA does not require a change of circumstances or provide that there must be a prima facie change of circumstances, rather, whether there is or is not a change of circumstances must be “considered” and all of the circumstances must be taken into account including section 60CC and whether there has been a change of circumstances. This is, on the face of the new section, a difference of substance not merely of emphasis when compared to the orthodox recitation of the rule.
(Emphasis in original and footnote omitted)
In Rasheem, Altobelli J said at [64]:
Section 65DAAA states that “a Court must not reconsider the final parenting order unless the Court has considered whether there has been a significant change of circumstances since the final parenting order was made”. The Court only needs to consider whether a significant change in circumstances has occurred. This is clearly a deviation from the rule in Rice and Asplund that mandated a finding of significant change in circumstances.
(Emphasis in original)
In the Family Court of Western Australia, O’Brien J in Babic and Taccini, agreed with Altobelli J and Judge O’Shannessy to some extent at [15]:
… [s65DAAA] does not expressly require proof of a significant change of circumstances as a preliminary threshold which must be cleared. Rather, the Court must first specifically consider the question of whether there has been a significant change of circumstances, and then take that into account in considering whether it is satisfied that in all the circumstances it is in the best interests of the child to embark on the reconsideration. The failure of the new applicant to establish that there has been a significant change of circumstances since the making of the final order is not expressed in s 65DAAA to be necessarily fatal to the new application.
However, O’Brien J disagreed about the impact of the practical application of s 65DAAA when he said at [16]–[17]:
Notwithstanding that, the proper application of s 65DAAA still requires a clear focus on just what change of circumstances is said to have occurred since the making of the final orders, and the circumstances in which those orders were made. While the considerations in s 65DAAA(2) are neither mandated nor exclusive, their purpose is clear.
In my respectful view, the departure accurately identified by their Honours is a distinction without a meaningful difference.
In an even more definitive decision, Altobelli J in Melounis said at [73] that although s 65DAAA was intended to codify the common law rule established in Rice and Asplund:
… the new statutory test espoused by s 65DAAA operates in a substantially different manner to the common law rule.
His Honour continued at [76]:
For the purposes of s 65DAAA, the Court must simply consider whether circumstances have significantly changed since the final parenting orders were made, but an actual significant change of circumstances is not a pre-requisite to allow a s 65DAAA application. At a minimum, a change of statutory emphasis has occurred from the prior common law principle. The weight to be afforded to any change of circumstance is varied, and necessarily based on the facts of the matter. The fundamental criteria that must be satisfied to allow a reconsideration of a final parenting order is that “the court is satisfied that, in all the circumstances…it is in the best interests of the child for the final parenting order to be reconsidered” (s 65DAAA(1)(b)). Other factors enunciated in s 65DAAA(2)(a)–(d) may inform the discharge of the statutory duty, especially if their evidentiary value outweighs the mere fact that significant change has not occurred.
(Emphasis in original)
Contrary to these views, Schonell J said in Carlyon & Graham (at [46]), “[t]here is nothing new in the provisions contained in s 65DAAA rather it is a codification of well-established jurisprudence” and Aldridge J (sitting as a single judge exercising appellate jurisdiction) said in Sciacchitano & Zhukov at [11], that “if s 65DAAA did not require a finding that there had been a change of circumstances it would be otiose and the whole section pointless”, and while it was not necessary for his Honour to form a concluded view he said he “would have grave misgivings about following [Rasheem, Melounis, and White & Talaska]” (at [13]).
It is not in doubt that the legislature intended s 65DAAA to codify the Rice and Asplund principles as developed over the decades since that decision. That much is clear from the Explanatory Memorandum to the Family Law Amendment Act 2023 (Cth) at [97]:
New section 65DAAA codifies the common law rule established by [Rice and Asplund] and elaborated on in subsequent cases, that is, where final parenting orders are in place the applicant must establish that there has been a significant change of circumstance since the making of the orders before those orders can be reconsidered. The rule is founded on the notion that continuous litigation over a child or children is generally not in their best interests.
(Footnotes omitted)
In my view, s 65DAAA reflects an orthodox statement of the rule which has for decades been applied. I respectfully agree with the views expressed by Schonell J in Carlyon & Graham and with Aldridge J in Sciacchitano & Zhukov.
The use of the term “consider” in s 65DAAA(1) should be understood in the context of the Court being asked to accept the applicant’s evidence taken at its highest but only for the purposes of the application. The suggestion that a court would consider whether there has been a significant change in circumstances without it having any consequence is an interpretation which would give no effect to s 65DAAA(1). Further, it has always been the case that applying the rule in Rice and Asplund is but a manifestation of the best interest principles and s 65DAAA(1)(b) and (2) merely reflect that part of the rule.
The drafting of s 65DAAA manages to achieve the subtleties of the rule in Rice and Asplund as expressed in the various permutations over the decades.
Turning then to consider the primary judge’s application of s 65DAAA.
Nowhere in the reasons does the primary judge actually apply the first limb of the codified rule in Rice and Asplund, at s 65DAAA (1)(a) namely, to consider whether there has been a significant change in circumstances based upon all the evidence relied upon by the father taken at its highest. The closest the primary judge comes to applying the first limb is at [98] of the reasons where he says:
In answer, or in response, to the basal question “has there been a significant change in circumstances”, in my view, there are reasonable arguments both ways.
The primary judge thereafter sets out the “reasonable arguments both ways” without expressing a concluded view in relation to all of the evidence relied upon by the father.
At [122] of the primary judge’s reasons, his Honour again references there being reasonable arguments on both sides as to whether there is a significant change in circumstances and concludes as follows:
Accepting that there are, as I have repeatedly said, reasonable arguments on both sides, in my view, having regard to “all of the circumstances,” there is insufficient change in circumstances to warrant the Court acceding to the Father’s Application. It should be dismissed.
The reference to “all of the circumstances” appears to be a reference to s 65DAAA(1)(b) but the second limb relates to whether the significant change in circumstances requires a reconsideration of the final parenting order. It can only have a function when s 65DAAA(1)(a) is properly applied.
While ground one in the appeal mistakes the finding at [122] as a finding on the first limb of s 65DAAA(1)(a), the misunderstanding is understandable in the circumstances. The point in ground one is nevertheless well made, namely, that the primary judge erred in failing to find that there had been a significant change in circumstances given the following uncontentious facts:
(a)That the final parenting order was made in 2015 when the child was two and he is now nearly 12 years of age;
(b)That the order on its face contemplated a reconsideration of the parenting orders;
(c)That by agreement, the father had spent more time with the child than was provided for in the final parenting order until September 2022;
(d)That the parent’s previous cooperative relationship had broken down;
(e)That in accordance with the strict provisions of the final parenting order, the child would spend no more than one night a fortnight with the father; and
(f)That the final parenting order was made in the absence of the father.
Whether such a finding would then lead to the Court to being satisfied, in all the circumstances, that a reconsideration of the final parenting order is required is a separate question.
DISPOSITION
The primary judgment is attended by sufficient doubt to warrant reconsideration. Although it might be suggested the father could bring another application to vary the final parenting order and therefore refusal of leave would not cause substantial injustice, if the father were to do so at any time in the near future, he may well be met with a summary dismissal application on the ground of abuse of process. Accordingly, to refuse leave would cause substantial injustice.
In my view, leave to appeal should be granted and the appeal allowed.
The orders sought by the father in that event are:
1.That the orders of 27 June 2024 be set aside.
2.That pursuant to s 65DAAA, the Appellant be permitted to bring an application for variation of the final parenting orders made on 15 December 2015.
The mother indicated an intention to rely on additional evidence if the appeal succeeded and in those circumstances the father accepted that the matter will need to be remitted. As the primary judge has since retired, the father’s application to vary the final parenting order will of necessity be heard by a different judge.
Before concluding, I think it necessary to clarify that to the extent the order sought by the father if the appeal succeeded might be thought to imply that the reference to being “permitted to bring an application for variation of the final parenting order” requires a court to grant “leave” to vary a final parenting order, there is and never was a need to obtain the “leave” of the court to vary a final parenting order. Rather, whether a court will reconsider a final parenting order involves the application of the best interest principles as now set out in s 65DAAA, it being long accepted that relitigating parenting proceedings will generally not be in the child’s best interests.
The following orders should be made:
(1)Leave to appeal granted.
(2)Appeal allowed.
(3)Paragraph 1 of the order made on 27 June 2024 be set aside.
I would grant costs certificates to both parties for the appeal and the rehearing.
I certify that the preceding one hundred and forty-three (143) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Carew & Williams. Associate:
Dated: 19 December 2024
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