Ready & Ready
[2021] FamCA 331
•21 May 2021
FAMILY COURT OF AUSTRALIA
Ready & Ready [2021] FamCA 331
File number(s): PAC 2441 of 2017 Judgment of: HOGAN J Date of judgment: 21 May 2021 Catchwords: FAMILY LAW – CHILDREN – where final parenting orders were made in January 2020 permitting the mother to relocate the children to live with her in Ireland – where, because of the COVID-19 pandemic, the mother and children remain living in Australia – where the father filed an Initiating Application in October 2020 seeking that orders be made that the mother be permitted to relocate the children to live in Ireland with the express written consent of the parents – where the father sought changes to that aspect of the January 2020 orders which provided for the children’s time with him – where the mother sought summary orders for the dismissal of the father’s Initiating Application – where the mother sought an order that the father be compelled to ensure the children’s names are not on any watch list maintained in either Australia or Ireland. Legislation: Family Law Act 1975 (Cth)
Cases cited: CDJ & VAJ (1998) 197 CLR 17
DL & W (2012) FLC 93-496
G & G [2000] FamCA 12
Hayman & Hayman (1976) FLC 90-14
In the Marriage of McEnearney (1980) FLC 90–866
Marsden & Winch (2009) 42 Fam LR 1
Miller & Harrington (2008) FLC 93-383
Newling & Newling; Mole (Applicant) (1987) FLC 91-856
Poisat & Poisat (2014) FLC 93-597
Rice v Asplund (1979) FLC 90-725SPS & PLS (2008) FLC 93–363
Number of paragraphs: 26 Date of hearing: 22 January 2021 Place: Brisbane The Applicant: In person Solicitor for the Respondent: Mr Davis, Simpson Family Lawyers T/A DV Lawyer ORDERS
PAC 2441 of 2017 BETWEEN: MR READY
ApplicantAND: MS READY
Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
21 MAY 2021
THE COURT ORDERS THAT:
1.Pursuant to section 68B of the Family Law Act 1975 (Cth), the father is restrained and an injunction issued restraining him from taking any action to place the names of the children X, a female, born … 2011 and Y, a male, born … 2014 on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
2.Pursuant to section 68B of the Family Law Act 1975 (Cth), the father is restrained and an injunction issued restraining him from taking any action to place the names of the children X, a female, born … 2011 and Y, a male, born … 2014 on any equivalent Family Law Watch List maintained in the Republic of Ireland.
3.The Initiating Application filed 20 October 2020 is dismissed.
4.Save as provided for above, the Response to Initiating Application filed 22 October 2020 is dismissed.
AND IT IS FURTHER ORDERED THAT
5.In the event that any party seeks an order that the other party pay his or her costs:
(a)if thought necessary by a party, that party has leave to file a further affidavit by that party containing any evidence relevant to the issue of costs and one other affidavit in support of the same provided that such affidavits are filed within twenty-eight (28) days of the date of this Order; and
(b)any such party shall file and serve any written submissions in support of such application for costs within twenty-eight (28) days of today; and
(c)the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve any brief written submissions in answer to the submissions filed and served by the party seeking costs; and
(d)the party seeking an order for costs shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,
and any such application for costs shall be considered in Chambers.
IT IS NOTED THAT
A.The Court declined to make orders in terms of those sought at paragraph 3 of the orders sought in the Response to Initiating Application filed 22 October 2020 because the father advised the Court he had agreed to sign all documents necessary for the children to obtain and maintain Irish passports and the Court was advised that the same had been signed on 15 January 2020.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ready & Ready has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J
The parents participated in a trial before me on 18 and 19 November 2019. The primary issue at that hearing was whether, as the mother contended, it was in the children’s best interests to be permitted to relocate with her to live in Ireland.
The orders I made on 13 January 2020 relevantly included that:
(a)the children live with their mother; and
(b)the mother be at liberty to relocate the children to live with her in Ireland at any time after giving the father no less than fourteen days’ notice in writing of her intention to do so; and
(c)until the children departed Australia for Ireland, they spend time with their father at all reasonable times as may be agreed between their parents and, failing agreement, from 5.30 pm Thursday until 7.00 pm Sunday (in week 1) and from 5.30 pm Thursday until 5.30 pm Sunday (in week 2) and for half of all school holidays.
It is accepted that, as a consequence of the COVID-19 pandemic, the mother and the children remain living in Australia.
On 20 October 2020, the father filed an Initiating Application by which he sought that orders be made in the following terms:
(a)until the Australian government changes the travel advice for Ireland on to Level 1 ‘Exercise normal safety precautions’ or until further order of the Court, Order 3 of the January 2020 Order be suspended and replaced with an order in the following terms: “The mother may relocate the children to live with her in Ireland with the express written consent of both the mother and the father”; and
(b)that Order 7 of the January 2020 orders be suspended until further order and replaced by an order in the following terms: “Until the children depart Australia for Ireland, they will spend time with their father at all reasonable times as may be agreed between the parties and failing agreement from 5.00 pm Thursday until 8.30 am on Tuesday (in week 1) and from 5.00 pm on Thursday until 5.00 pm Friday (in week 2) and for half of all school holidays; and
(c)in the event that, based on publicly available information published on government websites, either party is of the opinion that the safety concerns associated with the children travelling from Australia to Ireland have been alleviated to such an extent that travel does not present an unacceptable risk to the children or their relationship with either party, then the parties have liberty to apply for further orders on the giving of seven days’ notice to the Court and the other party.
By Response to the Initiating Application filed 22 October 2020, the mother sought, in essence[1], that the father’s Initiating Application be dismissed; she also sought[2], in summary, that orders be made requiring the parents to do all things necessary to ensure that the children have valid Irish passports at all times; that she hold the same and release them to the father on being given notice of intended travel and that the father return them to her within seven days after the children return from international travel; or, alternatively, that the children’s Irish passports may be issued without the father’s consent; and that the father do all things necessary to remove the children’s names from all travel watch lists maintained in Australia and Ireland.
[1]Albeit that the relief sought was “the proposed orders 1,2 and 3 as sought in the Father’s Application in a Case filed 21 October 2020 be dismissed”.
[2] In what is really a cross-application.
During the hearing, the father told the Court that he was happy to sign whatever documents are needed for the children to obtain and maintain Irish passports. I was also told that the applications necessary to obtain the children’s Irish passports had been signed by the father. Given this, it is unnecessary to consider further that aspect of the mother’s response which related to the children having Irish passports.
Consequently, the issues to be determined are: whether the father’s Initiating Application should be summarily dismissed on the basis that it has no reasonable likelihood of success,[3] either by virtue of the application at this stage of the “rule” enunciated in Rice v Asplund[4] or otherwise; and whether, to ensure that the implementation of the January 2020 order is not frustrated, an order should be made to compel the father to ensure that the children’s names are not on any watch list maintained in Australia or Ireland.
[3] Rule 10.12 Family Law Rules (2004).
[4] (1979) FLC 90-725.
Applicable Principles
In Rice v Asplund, Evatt CJ, with whom the other members of the Court agreed, said:[5]
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.
[5] (n 4) 78,905 – 6.
In Hayman & Hayman:[6]
These are not necessarily matters for a preliminary submission, but they are matters 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. Once the Court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way.
[6] (1976) FLC 90-140.
In Poisat & Poisat,[7] the Full Court said at [13]:
Whether or not the principle might properly be called a “binding rule” in the sense used by Mason and Dean JJ, for present purposes, it can be said that the rule in Rice & Asplund is of long standing, has been consistently recognised and applied both in this Court and at first instance and is intended to apply universally in the sense of applying to every case in which final parenting orders are sought to be discharged or varied subsequently.
[7] (2014) FLC 93-597 (“Poisat”).
The rationales underlying the “rule”, which is itself merely a manifestation of the best interests principle[8] at whatever stage of proceedings it is applied,[9] have been outlined in other Full Court and first instance decisions. As long ago as In the Marriage of McEnearney,[10] Nygh J said:[11]
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.
[8] See the discussion of Warnick J in SPS & PLS (2008) FLC 93 – 363.
[9] Ibid 82,451 [48].
[10] (1980) FLC 90–866.
[11] Ibid 75,499.
In Newling & Newling; Mole (Applicant),[12] Nygh J said:[13]
Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of action estoppel. What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeated applications concerning its custody and access before the Court.
[12] (1987) FLC 91-856.
[13]Ibid 76,467 with whom Barblett and Fogarty JJ agreed; referred to by the Full Court in Poisat.
In CDJ & VAJ,[14] the majority of the Court remarked, albeit in the context of an appellant, appealing an order changing children’s living arrangements, seeking leave at the hearing of the appeal to tender further evidence pointing to changes in circumstances, outlook or apparent welfare, that:[15]
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.
[14] (1998) 197 CLR 172.
[15] Ibid 204 [118].
In G & G,[16] Holden and Jerrard JJ commented that the emphasis is whether the Court is satisfied that a child’s best interests are being served by further litigation on a matter already decided upon and already the subject of court orders, whether made by consent or after a contested hearing.
[16] [2000] FamCA 12.
Further authority to which I have had regard also, relevantly, establishes the following:
(a)the best interests issue arises because, given that there are so many changes in the lives of families, those changed circumstances which will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would, in some cases, exist the “spectre of endless litigation”, which ends only when the child attains 18 years of age and the Court no longer has jurisdiction;[17] and
(b)the application of the rule is closely connected with the nature and degree of change sought to the earlier order;[18] and
(c)the rule is founded on the idea that continuous litigation over a child is not generally in that child’s interests, it being usually hoped that the determination of a controversy concerning a child 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 parents and children;[19] and
(d)the Court must determine whether the party seeking to vary or discharge an existing order has established there is a sufficient change of circumstances so as to justify embarking on a further hearing of the application.[20]
[17] Marsden & Winch (2009) 42 Fam LR 1, 19 [48] (“Marsden”).
[18] (n 8) 82,451 [48]; adopted in DL & W (2012) FLC 93-496, 86,322 [70].
[19] Marsden (n 17) [49].
[20]Miller & Harrington (2008) FLC 93-383, 82,857 [81].
It is clear that, in discharging this obligation, the Court is bound to take into account the best interests considerations and to apply the relevant legislative requirements.[21] It is also clear that determination in any particular case about whether the Court is willing to embark upon another hearing involving the parenting arrangements for children needs to be made having regard to matters which include: the past circumstances, including the Reasons for the decision and the evidence upon which it was based; whether there is a likelihood of orders being varied in a significant way as a result of a new hearing; and, if there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the children caused by the litigation itself.[22]
[21] Ibid 82,856 [72].
[22] Marsden (n 17) [50].
Authority also seems to establish that it is appropriate to adopt a two-step process and that the Court is required to consider whether a prima facie case of changed circumstances has been established and to consider whether such case represents or constitutes a sufficient change of circumstances so as to justify embarking on a hearing.[23] There remains within the Court a discretion about whether the “rule” in Rice & Asplund[24] is applied on a preliminary basis. In Poisat & Poisat,[25] the Full Court said at paragraph [18]:
In Miller & Harrington, this Court said at paragraph 72:
It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice & Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice & Asplund is applied, the Court is bound to take into account best-interests considerations and also because specific requirements, including legislative requirements, apply.
[23] Ibid 21 [58].
[24] (n 4).
[25] (2014) FLC 93-597.
As the application of the rule in Rice & Asplund[26] occurs within proceedings to which the provisions of Division 12A of Part 7 of the Family Law Act 1975 (Cth) applies, it seems to me that I am bound to apply the provisions of that Division, included within which are the mandatory requirements that I decide which of the issues in the proceedings require full investigation; which may be disposed of summarily;[27] and which require me to deal with as many aspects of the matter as possible on a single occasion.[28] It also seems to me that, as a consequence of the provisions of Division 12A of Part 7 of the Act, the Court must, in determining the conduct of the proceedings, consider the needs of the children and the impact that the conduct of the proceedings may have on them.[29] I have taken all of these matters into account in arriving at my determination. I have also take into account and had regard to those matters encompassed in s 68ZN(3) of the Act, which also include the importance of there being an end to litigation.
[26] (n 4).
[27] s 69ZQ(1)(a) of the Act.
[28] s 69ZQ(1)(g) of the Act.
[29] s 68ZN(3) of the Act.
Application of the principles and further discussion
I accept the submission made on behalf of the mother to the effect that, in seeking the order particularised at paragraph 1 of the Initiating Application filed 20 October 2020, the father is doing no more than attempting to revisit and re-litigate the primary issue at the trial conducted in November 2020 – namely, the children’s relocation to Ireland and how the mother, the children’s acknowledged primary care provider, was to cause this move to occur.
The effect of an order in the terms sought by the father would be to accord to him complete veto over the children’s relocation to Ireland and allow him to prevent the same – as he sought to do at the trial in November 2019. The effect of another aspect of the orders sought by the father (the proposed “liberty to apply” clause) would be to require the parents to approach the court again in relation to the issue of the children’s relocation to Ireland.
Whilst the occurrence of the COVID-19 pandemic is, self-evidently, something which arose after the January 2020 order was made, the rationale pervading the decision to allow the mother to relocate the children to live in Ireland, expressed in the Reasons for Judgment delivered in support of the same, remains the same: namely, to enable the mother to carry out her primary parenting of the children in the country she regards as her home and in which she will obtain significant support.[30] It is pertinent, also, to note that the form of the order made to permit the mother to relocate the children to live with her in Ireland expressly enabled her to do so on the giving of prescribed notice to the father and did not require her to relocate the children by a prescribed date: that is, the January 2020 order affords the mother complete autonomy in determining when she relocates the children with her to live in Ireland.[31]
[30]See Reasons for Judgment delivered 20 January 2020 at, for example: [9]-[11]; [34]; [35]; [45]; [47]; [49]; [60]; [79]; [83]; [83]; [86]; [87]; [89]- [99]; [101]; [102]; [104]; [107]; [109]; [112]; [150]-[152].
[31]See those aspects of the Reasons for Judgment which record the assessment of the mother’s parenting capacity, her acknowledged role as the children’s primary carer and the father’s acceptance that she is a “really good mother”.
That the implementation of certain aspects of the January 2020 orders which provide for the children’s time with their father after they relocate to live in Ireland will be affected until the pandemic responses permit that travel to occur does not, I consider, change the fundamental determination made following the November 2019 trial - namely, that it is in the children’s best interests to be primarily parented by a parent whose significant emotional needs for familial support are met, as was found to be the case if the mother was permitted to relocate the children to live with her in Ireland.
Whilst the father also sought changes to aspects of the January 2020 orders which prescribe the children’s time with him before their relocation to live in Ireland, on the basis that his circumstances have changed as he is no longer working in Sydney at all, such position was contemplated during the November 2019 trial.[32] Additionally, his position at trial was that the children’s best interests would be met by spending four nights each fortnight with him (in the manner which had been occurring since October 2017) until the end of 2022[33] – a contention adopted in the making of Order 8 of the January 2020 order.
[32] See: Reasons for Judgment at [73].
[33] See: Reasons for Judgment at [73], [110], [132] and [157].
In circumstances where the operative orders permit the mother to relocate the children to live in Ireland at any time after giving the father fourteen days’ notice of her intention to do so, I am not persuaded there is a sufficient change of circumstances to justify embarking on a further hearing (of the October 2020 Initiating Application) or that it is in the children’s best interests that their parents are again embroiled in litigation about the terms of their parenting regime which is to apply whilst they continue to live in Australia.
Given the difficulties associated with the mother obtaining passports for the children, I consider it in the children’s best interests and appropriate for their welfare that the father is restrained from placing their names on the Watch List in Australia and, similarly, on any equivalent list that may be available in Ireland, as such action would stymie them leaving the Commonwealth of Australia whenever their mother determines this occur and, perhaps, prevent them from entering the Republic of Ireland as contemplated by the January 2020 order.
For the reasons expressed above, I make orders in terms of those set out at the commencement of these Reasons.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 21 May 2021