Rees & Stroud
[2021] FamCA 397
•8 June 2021
FAMILY COURT OF AUSTRALIA
Rees & Stroud [2021] FamCA 397
File number(s): MLC 1462 of 2021 Judgment of: MCEVOY J Date of judgment: 8 June 2021 Catchwords: FAMILY LAW – CHILDREN – Rice & Asplund threshold issue – Where final parenting orders were made by consent in July 2018 after a 2014 trial before Cronin J – where the mother seeks to re-contest parenting orders on the basis of changed circumstances – where the father denies any material change in circumstances where the mother argues there has been a significant passage of time, that she has not seen the child in three years, that her mental health has improved and that she has moved closed to the child’s school – where the father argues that the mother has not discharged the burden of establishing a sufficiently serious and significant change of circumstances – where the mother failed to demonstrate any material change of circumstances – mother’s application dismissed
FAMILY LAW – COSTS – where the father seeks costs against the mother or alternatively the solicitor – orders made for further material to be filed in support of application for costs
Legislation: Family Law Act 1975 (Cth) Cases cited: Lancet & Deaves [2012] FamCAFC 36
Makita (Aust.) v Sprowles (2001) 52 NSWLR 705
Rice v Asplund (1979) FLC 90-725; [1978] FamCA 84Waldon & Cooper [2020] FamCA 104
Number of paragraphs: 26 Date of hearing: 8 June 2021 Place: Melbourne Counsel for the Applicant: Ms Rothschild Solicitor for the Applicant: Ms Rothschild Counsel for the Respondent: Mr Testart Solicitor for the Respondent: Brain Family Law ORDERS
MLC 1462 OF 2021 BETWEEN: MS REES
Applicant
AND: MR STROUD
Respondent
ORDER MADE BY:
MCEVOY J
DATE OF ORDER:
8 JUNE 2021
THE COURT ORDERS THAT:
1.The applicant mother’s amended initiating application filed 11 May 2021 is hereby dismissed.
2.Within 14 days the respondent father may file and serve any further material he wishes to rely upon, including any affidavit material and/or written submissions, in respect of his costs application filed 27 April 2021.
3.Within 30 days Ms Rothschild, the applicant mother’s solicitor, may file and serve any further material she wishes to rely upon, including any affidavit material and/or written submissions, in respect of the costs application made by the respondent father filed 27 April 2021.
4.Within 45 days the applicant mother may file and serve any further material she wishes to rely upon, including any affidavit material and/or written submissions, in respect of the costs application made by the respondent father filed 27 April 2021.
5.The respondent father’s costs application is adjourned to the judicial duty list on 13 September 2021 before the Honourable Justice McEvoy.
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 Rees & Stroud has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCEVOY J:
On 11 September 2014 after a four-day trial Cronin J made final parenting orders between the mother and the father under Part VII of the Family Law Act 1975 (Cth) in respect of the parties’ child who was then aged about five. These orders gave sole parental responsibility to the father subject to a requirement to consult the mother and provided that the child live with the father, however the mother was to have time with the child every other weekend, and half of school holidays and special days.
On 25 July 2018 a Registrar of the Court made orders on a final basis by consent which provided for:
(a)the orders of 11 September 2014 to be discharged;
(b)sole parental responsibility to the father;
(c)the child to live with the father; and
(d)there be no time spent between the child and the mother save by prior written agreement of the father or order of the Court.
At the same time as the July 2018 orders were made, and tendered to the Court in conjunction with submissions from both parties’ legal representatives in relation to the making of those orders, the mother executed an acknowledgement which stated, amongst other things, that:
(e)she understood the minute;
(f)she had had adequate time to consider the minute;
(g)she had had legal advice in respect of the minute; and
(h)her consent was voluntary.
The orders made by Cronin J in 2014 were made on the original application of the father in the Federal Circuit Court of Australia, which application was subsequently transferred to this Court. The final orders of 25 July 2018 were made on the application of the father in 2018. Thereafter, on 23 March 2020, the mother filed an initiating application with supporting material to which I will refer as the 2020 application. The 2020 application sought similar orders to those which the mother seeks in her application before me today.
Set out in the mother’s affidavit material filed in support of the 2020 application were various complaints made against the father – many if not all of which were very similar to those which are raised by the mother in her affidavit material filed in support of her present application, and most if not all of which were historical in as much as they were addressed in the 2014 proceeding. The mother’s application in 2020 ended, effectively, with her withdrawing her application prior to it coming before this Court on the first return date.
By an amended case application filed 11 May 2021 the mother now seeks the following relief:
(i)immediately to begin spending supervised time with the child at a contact service in Town P;
(j)following the production of “a report” being tendered by the supervisor as to the positive nature of the time spent, that that time progress as follows:
(i)each alternate weekend from immediately upon the conclusion of school Friday until immediately prior to the commencement of school Monday;
(ii)each alternate Wednesday night from immediately upon the conclusion of school until immediately upon the commencement of school Thursday morning;
(iii)for half of the school holiday periods; and
(iv)time on special occasions, including Christmas Day, Mother’s Day and the child’s birthday.
It is relevant to record that the parties met in 2008 and the child was born in late 2009. Thereafter the father spent time with the child, although that time was unilaterally suspended by the mother at various times and in 2013 allegations emerged that the father may have been sexually abusing the child.
Ultimately the father filed an initiating application in the Circuit Court which, as I have mentioned, was subsequently heard by Cronin J in this Court. In addition to the orders I have mentioned his Honour restrained the mother by injunction from:
(k)discussing the 2014 proceeding and the allegations made in that proceeding with or in the presence of the child;
(l)denigrating the father in the presence or hearing of the child or allowing anyone else to do likewise;
(m)facilitating the child’s attendance upon a W Centre or similar organisation or treating professional for counselling about the allegations made in the 2014 proceeding without the consensus of the mother and the father; and
(n)recording conversations with the child for any forensic or other litigation purpose.
In September 2018 the child commenced living with the father. In March 2018 the child made a disclosure to the father. The child said to the father that time with her mother over the weekend had not gone well because her mother “was saying mean things”.
Apparently the child said to the father:
“she (the mother) believes me – that I didn’t make up the things when I was three”;
“I have tasted Sal-moon (or something similar) or something but I haven’t”;
“Mum said that you lie”; and
“I fucked your private area but I didn’t”.
It was in this context that on 30 April 2018 the father filed the initiating application seeking orders that the child have no time with the mother. Subsequently, as I have indicated, on 25 July 2018 the mother consented to final orders in substantially the same terms as the orders sought by the father in his initiating application, that is, for the child to have no time with the mother.
It is against this background that the mother made her now abandoned application in 2020 and her present application.
As Austin J said recently in Waldon & Cooper [2020] FamCA 104, [9]-[11]:
9. The infinite vicissitudes of life mean no parenting order can ever be truly immutable, which reality is recognised in the Act (s 65D(2)). However, it is well established that no parenting orders, intended to be final, will be revised unless an applicant seeking to vary the orders can demonstrate a material change of circumstance to warrant the revision (Rice & Asplund (1979) FLC 90-725 at 78,905 (“Rice & Asplund”); SPS & PLS (2008) FLC 93-363 at [1] (“SPS & PLS”); Marsden v Winch (2009) 42 Fam LR 1 at [48] (“Marsden v Winch”); Langmeil & Grange [2013] FamCAFC 31 at [43]-[48]; Poisat & Poisat (2014) FLC 93-597 (“Poisat & Poisat”)).
10. The question of whether there has been a change in circumstances of sufficient magnitude to warrant revision of existing orders may be determined either by way of preliminary enquiry or comprehensive hearing (Poisat & Poisat at [39]-[41]; Marsden v Winch at [46]-[47]; Miller & Harrington (2008) FLC 93-383 at [80]-[83] (“Miller & Harrington”)) but, at whichever stage the determination is made, the application of the Rice & Asplund guideline is merely a manifestation of the paramountcy principle (Poisat & Poisat at [18], [19], [40], [42]; Marsden v Winch at [55]; Miller & Harrington at [101]) and procedural fairness should always be observed (Marsden v Winch at [56]).
11. In order to determine the existence and materiality of the asserted change in circumstances, consideration should be given to (Marsden v Winch at [50]):
(a) the past circumstances, including the reasons for the original decision and the evidence upon which it was based;
(b)whether there is a likelihood of the orders being varied in a significant way as a result of a new hearing; and
(c) if there is such a likelihood, whether the asserted need for variation of the orders outweighs the potential detriment to the child or children which the fresh litigation will cause.
In the proceeding before me today it is not apparent that the parties disputed the content of the applicable legal principles, only the manner in which they should here be applied.
The mother relied upon:
(o)her amended application of 11 May 2021;
(p)her affidavit of 11 February 2021;
(q)her affidavit of 23 March 2021; and
(r)her outline of case of 7 June 2021.
The father relied upon:
(s)his affidavit of 13 April 2021;
(t)his response of 27 April 2021;
(u)his objections to evidence of 3 June 2021; and
(v)his outline of 4 June 2021.
Insofar as the proposed new orders that the wife seeks, as I have mentioned the mother seeks orders that depart radically from the orders to which she consented in 2018. She says that there has been a significant passage of time, that it is three years since she last saw the child, that her mental health has improved, and that she has now moved closer to the child’s school. Thus, she says, on the basis of these changed circumstances she has demonstrated a material change of circumstances and has met the Rice & Asplund threshold.
The father, by contrast, says that the mother has not discharged the burden of establishing a sufficiently serious and significant change of circumstances which would justify proceeding to an inquiry with a view to overturning the extant orders in the best interests of the child. He points to a myriad of objections in relation to the mother’s affidavit material, including that it has not been properly sworn and it appears to contain an assertion that the mother is still concerned that the father may be sexually abusing the child (although I note that it is denied on behalf of the mother that she still maintains that the father is sexually abusing the child).
The father submits also, on the authority of Lancet & Deaves [2012] FamCAFC 36 at paragraphs [45] to [47] and [49] and [50], that mere passage of time is not sufficient to overcome the Rice & Asplund threshold.
On the subject of the mother’s mental health, the husband notes that the report of Dr U on which the mother seeks to rely in this respect was prepared in another case and without reference to relevant underlying material in this case. He says that relying on principles articulated in Makita (Aust.) v Sprowles (2001) 52 NSWLR 705, that report is inadmissible because it is based on different affidavit material and there has been no input into the assessment of the relevant underlying facts in this case. The father submits that the full picture of the mother’s mental health cannot be dealt with in the absence of what has transpired in this proceeding. He says, therefore, that the reliance placed on this report is illusory.
I should note also, reading from the summary at page 5 of the report, that Dr U says that he considers that there is no information in recent years to indicate psychiatric problems being suffered by the mother, and he makes certain further observations on the next page to the effect that the mother did not demonstrate any major cognitive deficits or signs of mental illness, and that in the absence of further information he is unable to make a diagnosis of psychiatric disorder. Critically, he says that upon the history available he was not inclined to opine that the mother is particularly at risk of any future behavioural or psychiatric issues related to psychiatric disorder and that she does not appear on the history available to require any psychiatric or psychological treatments.
It must, of course, also be observed, as the father has submitted, that this report was prepared by Dr U in another context and on the basis of other material and was not prepared on the basis of the available material which is relevant to this case.
The father also notes that the mother’s affidavit material is substantially silent on the benefit to the child of being reintroduced to her daughter.
I accept the father’s submissions in relation to each of these matters. The mother has failed to demonstrate any material change of circumstances, either individually or taken together, which would justify reopening the former dispute between the parties under Part VII of the Act. Having regard to the guidelines developed in the authorities to which reference has been made, the mother’s latest application will be dismissed.
Turning now to the issue of costs, the father has made an application that the mother’s solicitor pay his costs of responding to this application. He does so in circumstances where he conceded candidly in submissions that he sought to have a costs order made against a party which was able to comply with it, it being implicit that the mother would not to be able to comply with a costs order. Accordingly, he proposes a minute of order which would provide an ability for him to file any further material including written submissions in relation to his costs application, for the mother’s solicitor to have a period to do the same, and for the mother then to have a period within which to file and serve any responding material or other submissions, and for the matter to then be adjourned before me to a date to be fixed.
In all the circumstances I will permit the father to have time to file whatever further material, including written submissions, that he wishes to file on this subject, and then correspondingly, for the mother’s solicitor to file responding material and for the mother then to have a period to file material. The question of the father’s costs of this application will be adjourned before me to the Judicial Duty List on 13 September 2021.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy. Associate:
Dated: 8 June 2021
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