RATHBURN & DELREY
[2021] FCCA 1042
•17 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RATHBURN & DELREY | [2021] FCCA 1042 |
| Catchwords: FAMILY LAW – Parenting – consideration of the rule in Rice & Asplund – finely balanced case – threshold met. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 64B |
| Cases cited: Bennett& Bennett (1991) FLC 92-191 |
| Applicant: | MR RATHBURN |
| Respondent: | MS DELREY |
| File Number: | BRC 7105 of 2020 |
| Judgment of: | Judge Lapthorn |
| Hearing date: | 26 November 2020 |
| Date of Last Submission: | 26 November 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 17 May 2021 |
REPRESENTATION
| Solicitors for the Applicant: | ABA Lawyers |
| Solicitors for the Respondent: | Self represented |
ORDERS
The Response filed 21 July 2020 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Rathburn & Delrey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 7105 of 2020
| MR RATHBURN |
Applicant
And
| MS RATHBURN |
Respondent
REASONS FOR JUDGMENT
Introduction
I am asked to determine an application to vary final parenting orders made by consent on 30 August 2017 (the 2017 orders) in relation to three boys: 12 year old X, 10 year old Y, and 8 year old Z. These orders provided for the parents to have equal shared parental responsibility and for the boys to live primarily with their mother. The boys spend time with their father at different times over an eight week cycle. I will set out that order later in this judgment.
If the father is successful in his application filed 10 June 2020, he would seek orders for the children to live with the parties in a week about arrangement. The mother opposes his application and seeks the application be dismissed by way of a preliminary determination without the necessity of proceeding to trail. It is her case that the father has not demonstrated a change of circumstance significant enough to warrant a new hearing in accordance with the decision in Rice & Asplund[1].
[1] In the Marriage of Rice and Asplund (1979) FLC 90-725, 6 Fam LR 570
Throughout this judgment I will refer to the applicant as the father and the respondent as the mother. X, Y and Z will be collectively referred to as either the children or the boys. I mean no disrespect in doing so.
Legal Approach
Although the court has the power to vary or set aside parenting orders[2], a court is usually reluctant to entertain a fresh application for parenting arrangements because it is rarely in a child’s best interest to have ongoing litigation about his or her care and wellbeing. The Full Court of the Family Court in Rice & Asplund held:
[The court] should not lightly entertain an application to reverse an earlier custody order. … the court would need to be satisfied by the applicant that … 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. … These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision.
[2] Section 64B(1)(b)
It is for the court to exercise its discretion in deciding whether to embark upon a full hearing of a matter or to determine the ‘threshold’ issue as a discreet point by way of preliminary determination.[3] Warnick J in SPS & PLS[4] considered the term ‘threshold’ in this context to mean:
… ‘the first question to be determined’ and which, depending on the answer to it, may be dispositive of an application for parenting orders, irrespective of when in a hearing it is posited and answered.[5]
[3] Bennett& Bennett (1991) FLC 92-191, D & Y (1995) FLC 92-581
[4] [2008] FamCAFC 16
[5] ibid at page 13
Collier J in King and Finneran said:
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 the litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children.[6]
[6] [2001] FamCA 344 at paragraph 44
His Honour also said:
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 would defeat the purpose of that protection.[7]
[7] ibid at paragraph 41. His Honour’s reference to s.68F was to the Family Law Act as it was prior to the 2006 amendments. See s.60CC
Murphy J in the Full Court decision of Searson & Searson[8] endorsed the approach taken by Warnick J and considered a number of authorities relative to the consideration of the Rice v Asplund argument being considered as a preliminary point. It is worth repeating this analysis of these authorities:
[8] [2017] FamCAFC 119 Kent and Loughnan JJ agreed with the decision of Murphy J
[8] It is well settled that the “rule in Rice & Asplund” can be applied at the outset of a hearing or proceedings or at the end of a hearing.[9]
[9] Rice & Asplund (1979) FLC 90-725; SPS & PLS (2008) FLC 93-363; Marsden & Winch (2009) 42 Fam LR 1; Miller & Harrington (2008) FLC 93-383
[9] In the important decision of SPS & PLS,[10] (“SPS”) Warnick J held that the discussion of the rule in the various authorities had “not always used consistent terminology”. His Honour noted, in particular, that the term “threshold” has had different connotations. His Honour went on to say that he would in that judgment “refer to the situation arising when the question is posed and answered at the outset of a hearing as treatment of the question as a ‘preliminary matter’”.[11] It is in that sense that the expression is used in these reasons of mine. As it seems abundantly clear to me, the treatment of the rule in that manner is what was contemplated and undertaken by the parties and by her Honour in the proceedings below.
[10] (2008) FLC 93-363 approved in Marsden & Winch (2009) 42 Fam LR 1; Miller & Harrington (2008) FLC 93-383; Walter & Walter [2016] FamCAFC 56
[11] SPS at [46]
[10] In SPS, Warnick J went on to hold[12] that:
[12] at [48]
… At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
…
The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
[11] His Honour went on to say this:[13]
… [I]n my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
[12] Yet, as his Honour was at pains to point out, the rule is not the application of some esoteric principle but rather, the practical application of a principle designed to avoid “endless litigation” to the detriment of the relevant children in circumstances where otherwise the principles of res judicata do not apply.[14]
[13] Thus, for example, Nygh J said in McEnearney & McEnearney:[15]
… 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.
[13] SPS at [81]
[14] Rice & Asplund at 78,905 per Evatt CJ
[15] (1980) FLC 90-866 at 75,499
[14] To similar effect, Warnick J said in SPS:[16]
Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This “evil” is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.
[15] The “evil” referred to is the undoubted harm to children of “a perennial football match between parents” and the canvassing “again and again” of issues relating to their best interests. That situation can in my view be distinguished from circumstances in which the parties express their agreement about parenting arrangements in a consent order but are now no longer in agreement and where it is said that the now absence of agreement is due to circumstances that have changed since the making of the consent orders.
[16] SPS at [58]
In Marsden and Winch[17] the Full Court[18] said:
[48] In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
[49] However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.[19]
[50] Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3) If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
[17] [2009] FamCAFC 152
[18] Bryant CJ, Finn & Cronin JJ
[19] See for example Jennifer McIntosh ‘Enduring conflict in parental separation: Pathways of impact on child development’ (2003) 9 Journal of Family Studies 63 and Jennifer McIntosh and Richard Chisholm ‘Cautionary notes on the shared care of children in conflicted parental separation’ (2008) 14 Journal of Family Studies 37.
This matter proceeded on the basis that I should determine the Rice and Asplund argument as a preliminary matter and by way of written submissions. I am satisfied that it is appropriate to do so.
Material Relied Upon
In support of his case the father relied upon the following material:
a)Application for Final and Interim Orders filed 10 June 2020;
b)Notice of Risk filed 10 June 2020;
c)His Affidavit filed 10 June 2020;
d)Consent Orders made on 30 August 2017; and
e)The mother’s Notice of Risk filed 21 July 2020.
The mother relied on:
a)Response filed 21 July 2020; and
b)Her affidavit filed 21 July 2020.
Although the father objected to the court having regard to the annexures to the mother’s affidavit, I am satisfied that regard should be had to them in order to fully assess the preliminary point.
Background
The parties commenced a relationship in 2005. They married in 2011, separated in December 2013 and were divorced in October 2015. They have each re-partnered and the mother has two children with her husband Mr B. The father is married to Ms C who has three children to a previous relationship who live with her in an equal time arrangement.
X was born in 2008, Y was born in 2011 and Z was born in 2012.
A two year family violence protection order was made on 4 September 2014, on a without admissions basis, listing the mother as the aggrieved and the father as the respondent. The children were named on the order. A further family violence protection order was made on 15 September 2016, again on a without admissions basis. This order expired on 14 September 2018.
The father commenced proceedings for parenting orders on 16 March 2016. Interim orders were made on 9 May 2016 for the children to spend time with the father for seven hours each Saturday and for the appointment of an Independent Children’s Lawyer (ICL). Further interim orders were made by consent on 18 August 2016 which provided for the children to spend time with the father initially for one overnight a fortnight and after three such periods of time for two overnights a fortnight and one afternoon in the alternate week.
A family report was prepared as part of these earlier proceedings however it was not before me as part of the material read in either party’s case. The matter had been set down for final hearing on 30 August 2017 however the parties reached agreement and the consent orders were made in chambers the day before. These orders provided for the father to spend time with the children as follows:
5.The children spend time with the father as agreed but failing agreement on an eight (8) week cycle commencing on 3 September 2017 as follows:
(a)Week 1 from midday Sunday until 9:00am Monday and where Monday is a public holiday or pupil free day then 9:00am Tuesday;
(b)Week 3 from 7:30am Sunday morning until 4:00pm Sunday afternoon;
(c)Week 6 from 7:30am Sunday until 9:00am Monday;
(d)Week 7 from 7:30am Sunday until 9:00am Monday and where Monday is a public holiday or pupil free day then 9:00am Tuesday; and
(e)Week 8 from 7:30am Sunday until 9:00am Monday and where Monday is a public holiday or pupil free day then 9:00am Tuesday.
The reason for the eight week cycle in those orders was to accommodate the father’s work roster. The evidence suggests that there has been no change to his work roster.
The parties’ financial matters were finalised by consent on 16 April 2020. The following week the parties participated in mediation in relation to parenting matters but were unsuccessful. The father then, on 10 June 2020 filed these current proceedings seeking a variation of the 2017 orders. Orders were made on 19 August 2020 enabling the children to attend the father’s wedding in 2020.
Discussion
The father’s case was based on a number of changes since the making of the 2017 orders. He said that at the time of the 2017 orders he was living alone and did not have the benefit of the stability he now enjoys as a married man. He is now living with his wife and her three children (on alternate weeks) in a spacious home. Ms C’s children are of a similar age to the children in these proceedings and the father tells the court the children get on well and share bedrooms.
He argued that the children were much younger when the 2017 consent order were made. X was only 8, Y was 6, and Z had just turned 5 at the time. They are now 11, 9 and 8 years of age respectively. X is now in high school. The father argued that the effluxion of time is a significant factor warranting a re-opening of the parenting orders because the boys have experienced developmental changes since the earlier orders were made. The father deposed that the boys have been saying they want to spend more time with him. He argued that it was important for their voice to be heard.
The father argued that the 2017 orders provide for very limited time for him and the children and the arrangement entered into by him as a self-represented litigant at the time was unusual. I do not accept the provision for an eight week cycle is unusual in cases involving shift workers although I do accept the time provided for the children to spend time with their father appears to be limited. I reject his argument that the orders do not enable him to be more involved in the children’s schooling and extra-curricular activities. There is nothing in the 2017 orders that would restrict his involvement in that regard.
The father also deposed of the children telling him about difficulties in the mother’s home that involve family violence. This is denied by the mother. It is important to note that the father is not alleging that the incidents have occurred but that the children have told him they have and he would like it investigated. The father’s evidence is that the boys have told him that the mother’s husband has hit them, that he has ripped a shelf off the wall of one of the children’s bedrooms causing damage to the wall, that he speaks to the mother in an appalling fashion, and that they have been instructed to call the mother’s husband, Dad. He also gave evidence of the mother’s husband monitoring his conversations with the children and intervening in them.
It was submitted on his behalf however, that the most important point of difference since the making of the 2017 orders, is the establishment of a new household since his marriage.
The Mother argued that there had been no material change of circumstances since the making of the 2017 orders. As part of her submissions she asserted that the father had not produced any independent evidence to suggest re-litigating the mater outweighs the detriment to the children and the parties of further proceedings. Reference was made to subpoenaed material and I was invited to make a finding that the father had been conducting a vexatious and malicious campaign against her. This subpoenaed material was not properly tendered and I can therefore not have any regard to it. There is no evidence properly before me to enable me to make the finding invited by her that: the independent evidence found in the subpoena material indicates that prolonging the dispute is causing detriment to the children.
The mother argued that the father’s work roster has not changed since the making of the 2017 orders and therefore the limitations on his personal availability that underpinned the making of the 2017 orders remains the same. She submitted that the father had a different partner at the time of the 2017 orders but that his marriage does not constitute a material change of circumstances.
Further the mother contends there has been no change to the living arrangements for the children in her household. She continues to live in the former matrimonial home, undertaking the same employment as is her husband. The children continue to attend the same schools. There have been no significant health issues affecting the children.
When looking at the circumstances surrounding the making of the 2017 orders I am satisfied that although the father was unrepresented in those proceedings he was invited to seek legal advice by the ICL at the time and was put on notice by her that he would have to show a significant change of circumstances if he wanted to vary the proposed consent orders. I accept the parties did not have a contested final hearing but the litigation progressed right up to the day before the allocated dates for hearing and a family report had been prepared. Therefore I take into account the children would have been interviewed by the report writer and observed with the parties. This was not a matter that settled early in the litigation stage. There can be no doubt that the parties and the children were impacted by the experience of litigation.
The father’s roster has not changed since the making of the 2017 orders, which was a factor in the decision to adopt an eight week cycle. Although the mother submitted that when the father agreed to the 2017 orders he was in a committed relationship, albeit with a different partner to his now wife, I am satisfied his marriage to Ms C and the set-up of his home is a factor that should be taken into account. That on its own may not be sufficient however to establish a significant change of circumstances but the court should look at the overall situation as it now stands.
One of the principles underpinning the rule in Rice and Asplund is to avoid repeated litigation. Effluxion of time in and of itself would not be sufficient to establish a significant change of circumstances. The passage of time would need to be assessed in relation to the children’s ages between the making of the original orders and the new application and what if anything has changed for them.
In this case it has been nearly four years since the making of the 2017 orders. X is now at high school. The father’s evidence is that they have been asking to have more time with him. I have no evidence as to their level of maturity however I am prepared to assume that they have developed as most children do over a four year period. There was certainly no evidence to suggest that any of the boys were behind in their developmental milestones. A child’s views as to the time they wish to spend with a parent and the circumstances surrounding the acquiring of those views is a relevant factor in determining a child’s best interests. Although the boys spend regular time with their father, it is not surprising to hear that they have been asking for more time with him as they have aged. The current orders do not provide for more than one overnight on a weekend unless there is a public holiday. Should the leave to continue these proceedings be granted it is highly likely that different orders for the boy’s time with their father would change, notwithstanding he remains on his current roster. I make no comment however as to his prospects of persuading the court that an equal time arrangement should be implemented.
I take into account that the parties have attempted mediation and have failed to reach any agreement between themselves to vary the orders.
I also take into account the father’s evidence, at its highest, that the children have told him certain things about life in the mother’s home. Although the father does not press this as his main reason for seeking a change it is a relevant consideration. The mother referred to subpoenaed material that if viewed would have, on her case, persuaded me not to give weight to this aspect of the father’s case. I have earlier indicated that I could not look at this material as it had not been put properly before me. Having said that, it is highly likely that I would not have been able to make any findings as to the allegations based on the subpoenaed material as the conclusions of others are not evidence that can be given weight. This issue may well form part of the court’s consideration in determining the best interests of the children in the future and I propose to give it weight in my determination.
The mother, correctly, with respect, argued that the court must weigh up the potential detriment to the children caused by a re-opening of the litigation. She said that if I did so, even if, I accepted the father’s case the best interests of the children would not warrant a re-opening. There can be no denying that the parties would experience stress whilst litigation remains unresolved. The children would pick up on their parents’ anxiety. They too would be disrupted in that they would be required to take part in a family report process unless the parties reach an early agreement. The children are older now and would be more aware of the dispute between the parents. On the other hand, if the children are sincere in telling their father they want to spend more time with him, as opposed to playing the parents off against each other, this would be an opportunity to have their voices heard.
Conclusion
This is a very finely balanced case. Further litigation should be avoided whenever possible. Each of the factors relied on by the father may not have been sufficient on their own but when I take them into account as a whole I am satisfied that the balance lies in re-opening the litigation. The father has a new household with his wife who has children of similar ages to these boys. He tells the court the boys want to spend more time with him. He raises concern as to what the boys are telling him is happening in the mother’s home. There is good prospects that a different form of order for the children’s time with the father would emanate from a re-consideration of their living arrangements. The mother is right when she says there has been no change in the father’s roster and that the court would be concerned about the effects of ongoing litigation on the children but for the reasons set out above I am satisfied the father has met the threshold and that there has been a significant change of circumstances. I will therefore dismiss the mother’s Response filed 21 July 2020.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn
Associate:
Date: 17 May 2021
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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