RIBERIO & CHASE (No.2)

[2013] FCCA 1567

FEDERAL CIRCUIT COURT OF AUSTRALIA

RIBERIO & CHASE (No.2) [2013] FCCA 1567

Catchwords:
FAMILY LAW – Application to revisit parenting orders made in 2012 – application of Rice v Asplund – whether material change in circumstances – whether spend time orders appropriate for very young child in any event – application dismissed. 

Legislation:  

Family Law Act 1975 (Cth), s.117(1)

In the marriage of Rice and Asplund (1979) FCL 90-725
SPS v PLS [2008] FamCAFC 16

Applicant: MR RIBERIO

Respondent: MS CHASE

File Number: MLC 6007 of 2012

Judgment of: Judge Burchardt

Hearing dates: 16 & 19 September 2013

Date of Last Submission: 19 September 2013

Delivered at: Melbourne

Delivered on: 25 September 2013

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Mr Hutchings

Solicitors for the Respondent: Sarah Lia

Counsel for the Independent Children’s Lawyer: Ms Weldon

Solicitors for the Independent Children’s Lawyer: Septimus Jones & Lee

ORDERS

1. The Initiating Application filed 16 July 2013 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Riberio & Chase (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 6007 of 2012

MR RIBERIO

Applicant

And

MS CHASE

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. As recently as 16 November 2012, final orders were made by consent in respect of X, a little girl born (omitted) 2011.  At that time, the parties were all legally represented, and the Court had the assistance of an Independent Children’s Lawyer and a family report.  The time ordered for the child with the father was relatively extensive for a child of such a young age. 

2. On 16 July 2013, the father filed this Initiating Application which is presently before the Court.  He seeks to spend more time with X, and when you nut it out, he is effectively seeking an equal shared care arrangement, although not in blocks of a week at a time. 

3. His Affidavit in Support was also filed on 16 July 2013, and in that, Mr Riberio says that there has been a significant change in circumstances.  Very happily, the father’s health is substantially improved from what it was last year.  This is the case to a point where he is now able to return to full-time work.  The father says the times originally ordered in the context of his then very poor health no longer work for him because of his employment. 

4. The mother’s Response filed on 20 August 2013 seeks that the application be dismissed.  Her Affidavit in Support was filed the same day. 

5. It is apparent from that Affidavit that the parties reconciled after the Court case last year, and in fact were married on (omitted) 2013.  An extant Intervention Order was revoked by consent.  Very unfortunately for the parties things did not work out, and on 19 June 2013 final separation took place.  There is an Interim Intervention Order in place, which will be the subject of further hearing in due course. 

6. The mother’s Affidavit sets out various difficulties if the father’s application were to be successful.  I note in particular that the mother emphasised the difficulties with X spending time with her older siblings. 

7. When the matter was before the Court on 16 September 2013, I appointed an Independent Children’s Lawyer, as Mr Riberio was self-represented, and I felt that the niceties of the line of authority springing from Rice v Asplund might be a bit beyond him.  Arguments were, however, put on 19 September 2013, and I will traverse those from my notes. 

8. Ms Glaister of counsel, for the Independent Children’s Lawyer, went first.  She pointed to X’s date of birth and the orders made last year, and noted that the spend time regime under those orders was due to increase in April 2013, and had indeed done so.  The father was spending 6 nights per month and one daytime with the child, and these matters were consistent with the family report of Ms B on 17 October 2012. 

9. Ms Glaister noted this was still a very young child, and the father had had a serious medical condition.  The parties reconciled and then separated again.  Ms Glaister pointed out that the father’s application did not take into account the time that the mother and the siblings spent on weekends together, and noted that there were, to an extent, different facts now.  Nonetheless, counsel submitted, in the round, that whether or not there was a material change in circumstances, the current orders provide significant and substantial time in any event. 

10. Mr Riberio then made his address.  He pointed out that the orders made by consent took place at a time when it was thought likely his death was imminent.  The child, he said, is thrilled at spending time with him.  He is now in full-time work, self-employed, and this makes seeing the child during the current court-ordered times difficult if not impossible on occasions.  He submitted the child was too young to be away from him for extended periods of time. 

11. While he accepted that relations between X and her siblings were important, he asserted that the mother either does or more probably could have those children with her for 9 days per fortnight, and that this would enable time to be spent with the siblings.  He said he is still not clear of the cancer, and has a scan due in November, and he has counselling for stress once per week.  Essentially, he sought to shift time and have time on Thursdays.  He asserted he pays $250 per week rent, and earns $200 per day for two days’ work per week.  He put forward the regime of time that he was now seeking to spend. 

12. Mr Hutchings for the respondent opposed the matter being reopened.  He put in question the issue as to whether Child Support was being paid, and he said that only minimal Child Support was being paid.  He pointed to the medical evidence provided in the previous proceeding, and suggested that there was no immediate prospect of the demise of Mr Riberio at the time of the previous hearing, and that there had therefore not been a material change of circumstances. 

13. Mr Hutchings pointed also to the fact that the applicant says he is self-employed as a (omitted), and must be taken to have some measure of flexibility.  It was submitted that while work might impact upon the current regime, the net effect would be just to lose the odd night every now and again.  Bearing in mind that the parties live in (omitted) and (omitted), the same as they did at trial, there are obvious difficulties, it was submitted, in making any changes. 

14. Mr Hutchings noted that the child has been involved in litigation all her short life, and the time is due to increase and had increased in April in any event.  It was submitted that the proceedings, of their nature, would be stressful to the parents, and this was not in the child’s best interest.  Reference was made to certain sections of the family report. 

15. Mr Riberio made a short reply, but that did not take the matter further.  

16. Put simply, the father says there has been a material change in circumstances but the mother says there has not.  The position of the Independent Children’s Lawyer is more opaque.  Even if there is material change in circumstances, the Independent Children’s Lawyer’s position, as I understand it, is that the current orders provide substantial and significant time, and should not be disturbed. 

17. The operation of the doctrine of what is known as Rice v Asplund was considered in some detail, and in my respectful view, extremely helpfully, by Warnick J in the Family Court of Australia, sitting, I think, as a Full Court in the matter of SPS v PLS [2008] FamCAFC 16. I refer to and incorporate, as it were, the whole of that judgment by reference, but I would refer to some particular passages. I will commence at paragraph [48], where his Honour said:

    “In my view, reflection on the rule shows that:

    (i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.

    (ii) In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.

    (iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the "best interests principle".

    (iv) Discussion in terms that the rule may be applied as a "preliminary matter" or the primary application be first heard "on the merits" may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with "on the merits". (Emphasis added).

    (v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.

    (vi) "Shorthand" statements of the rule may contribute to its misapplication.

    (vii) Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.”

18. At paragraph 50, his Honour continued:

    “Rice and Asplund involved an appeal from custody orders which reversed an order made nine months beforehand. In her reasons for judgment, Evatt CJ said of the position of a court confronted with an application to change an earlier order that (at 78,905):

    … 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.”

19. At paragraphs [56]-[57], his Honour continued:

    “56.  As seen above, in Rice and Asplund, Evatt CJ recognised that a purpose of the rule was to discourage "endless litigation". I opine that the public interest in the finality of litigation is at least partly derived from a desire to avoid the public expense of subsequent hearings and the imposition of them on court time.

    57.    In In the Marriage of McEnearney (1980) FLC 90-866, Nygh J moved beyond the general position of public interest in the finality of all litigation, to purposes more specific to family law. He said (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, 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. (emphasis added)”

20. Finally, at paragraph [83], Warnick J said:

    “Accordingly, the rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes.”

21. Here the question of material change in the circumstances is, putting the matter as best one could for the father, hardly clear.  It is not clear to what extent the father’s health impacted upon the original outcome, albeit that I accept that it was then thought to be far more pressing from that point of view than it is thought to be now. 

22. The orders made, however, on 16 November 2012, themselves envisaged an increase of time in April 2013.  They also expressly dealt with the issue of Christmas 2013.  Thus the father’s imminent demise was clearly not taken as a datum.  The father is working now, and that was not foreseen, in my view, but he is self-employed as a (omitted), and must, as counsel for the respondent submits, have some measure of flexibility. 

23. In the ultimate, I think the counsel for the Independent Children’s Lawyer’s submission is correct.  The current orders themselves are eminently appropriate for a child of this age.  The child’s best interests are the paramount consideration.  In my view, the child would best be served by continuing the current orders.  Further litigation and stress for the parents are not in the child’s best interests.  The changes sought are not minor, and would not involve, as Warnick J pointed out, a short and confined inquiry.  They would require a complete revisiting of all the relevant matters that were before the Court in November of last year. 

24. In all the circumstances, in my view, the application should be dismissed, and I make that order.  

Discussion – not transcribed

1. The standard approach to costs is set out in s.117(1) of the Family Law Act 1975 (Cth) (“the Act”), which is that, subject to subsection (2), each party bear their own costs. Pursuant to subsection (2) of s.117, the Court may, subject to, relevantly, subsection (2A), make such order as to costs as it feels are just, if there are circumstances that justify it in doing so.

2. Section 117(2A) provides various mandatory matters that the Court should take into consideration.  The first is the financial circumstances of each of the parties of the proceedings.  Neither are at all well-off.  The fact is that, putting the matter at its highest, Mr Riberio’s new-found employment is scarcely remunerative.  I think it is not necessary to say more than that. 

3. The next matter I have to consider is whether any party is in receipt of legal aid, and I understand that the respondent is in receipt of legal aid.  There has been nothing said as to the terms of the grant of aid in this instance, but even putting things at their worst, the capacity of the respondent to be levied anything significant by legal aid would seem questionable, given her financial circumstances.

4. The next matter to consider is the conduct of the parties to the proceedings in relation to the proceeding generally.  That goes, really, more to procedural matters for these purposes.  Likewise, subsection (d), these proceedings have not been necessitated by the failure of a party to proceedings to comply with previous orders of the Court.  

5. The next matter, which is plainly relevant, as counsel submits, is whether one party has been entirely unsuccessful, and it is quite right that Mr Riberio has been undoubtedly entirely unsuccessful.  However, Mr Riberio is self-represented.  I do not doubt that this application springs from a genuine love of his child, and a very sincere desire to spend more time with her. 

6. At the very least, his own perception of his circumstances must have changed.  He was facing imminent demise, as he saw it last year, and his health, mercifully, is now much better.  Indeed, the matter was not so clear that I felt it appropriate to dismiss it summarily.  I felt it necessary to appoint an Independent Children’s Lawyer, and indeed, it is the Independent Children’s Lawyer’s submissions I have accepted.  Thus, while it was always going to be a difficult application for the applicant, it was by no means utterly devoid of merit.  It involved, as I say, a somewhat opaque situation, as the Independent Children’s Lawyer, in substance, submitted.

7. In all the circumstances, in my view, it is inappropriate to make a costs order, and I decline to do so. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  25 September 2013