Sansom and Middleton

[2016] FCCA 462

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANSOM & MIDDLETON [2016] FCCA 462

Catchwords:
FAMILY LAW – Rice v Asplund principle – whether there has been a change in circumstance or of sufficient materiality to engage a Family Report to assess and report on a 12 year old child’s views as to his parenting and living arrangements.

Legislation:

Family Law Act 1975

Cases cited:
Rice & Asplund [1979] FLC 90-725

Applicant: MR SANSOM

Respondent: MS MIDDLETON

File Number: MLC 6687 of 2012

Judgment of: Judge McGuire

Hearing date: 3 March 2016

Date of Last Submission: 3 March 2016

Delivered at: Melbourne

Delivered on: 17 May 2016

REPRESENTATION

Counsel for the Applicant: Mr Hutchins

Solicitors for the Applicant: Campbell & Shaw

Counsel for the Respondent: Ms Stoikovska

Solicitors for the Respondent: Carew Counsel Pty Ltd

ORDERS

1. That pursuant to section 62G of the Family Law Act 1975 Mr G or such other practitioner as agreed between the parties prepare a Family Report and the parties attend for interviews as arranged by the family reporter and ensure the attendance of the child X (“X”) born (omitted) 2003 and:

   (a)The family report to deal with the following matters:

   ·any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

   ·the capacity of each of the parents to attend to the emotional, physical and intellectual needs of the child, with reference to any medical issues of the mother/father/child;

   ·the willingness and ability of each of the parents to facilitate and encourage the child’s relationship with the other parent;

   ·the nature of the relationship between the child and the parents;

   ·any family violence within the definition of the Family Law Act which impacts on the living arrangements and parenting capacity of each of the parents;

   ·the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

   ·any other matters that the family consultant considers important to the welfare or best interests of the said child.

   (b)The parties send copies of all of their court documents to the family report writer within seven days of being requested to do so by the family report writer.

2. The nominated family consultant is permitted to inspect all documents brought to Court under subpoena issued in this matter and previously released for inspection by at least one party.

3. The matter be adjourned to 24 May 2016 at 9.30 am for mention/directions at the Federal Circuit Court at Melbourne.

IT IS NOTED that publication of this judgment under the pseudonym Sansom & Middleton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6687 of 2012

MR SANSOM

Applicant

And

MS MIDDLETON

Respondent

REASONS FOR JUDGMENT

1. The father is the applicant and seeks a final parenting order where the relevant child, X (“X”), born (omitted) 2003 (aged 12 years) lives on a “week-about” basis between the parents. Importantly, however, for the matters now before me, the father seeks an interim order that there be a Family Report prepared by Mr G, who is a social worker and one who has previously provided at least two family reports in respect of X.

2. The application is opposed on the basis that the matter in its substance should be disposed of pursuant to what is colloquially known as the “principle in Rice & Asplund.”[1]

   [1] [1979] FLC 90-725

3. The father says that X is expressing a desire to spend more time with him and, in particular, live on a week-about basis between the parents. The father, in his affidavit of 20 November 2015, at [9-10] deposes:

   The issue which necessitates this Application is X’s passionately expressed desire to live with me and the Applicant on an alternate week basis.

   X has consistently expressed this wish to me and other members of my family over the last twelve months to the point of becoming anxious and frustrated.

4. At [20] the father says:

   X is a very intelligent and articulate boy and mature for his age. He attends (omitted) College and is in year 6. He is progressing well and his school reports indicate he is well above the standard of his peers.  He is musical and plays the piano to a high standard. He is interested in art and when I have taken him to galleries he has an understanding of the artist of the artist [sic] expression and techniques. He is able to communicate easily with adults.  He plays basketball and we regularly go on bushwalking in Victoria and interstate during school holidays.  He is a keen cyclist and on most weekends we go riding around (omitted)…

5. Given the father’s affidavit, I can assume that X commenced high school at the beginning of 2016.

6. The father filed a second affidavit on 26 February 2016, essentially in response to the mother’s affidavit material and at [11] says:

   I believe there has been a considerable change in X’s circumstances since the orders were made in September 2013.  X will turn 13 in June this year and has developed a mature and considered view of varying the current arrangements for his care.  As deposed in my previous Affidavit, X is a very intelligent and articulate boy for his age.

7. The father also relies on an affidavit from his older 33 year old son, Mr A. He says that he has been close to, the now 12 year old, X since the child’s birth and involved in his day-to-day care. At [7] he deposes:

   Over the past 12 months X has regularly expressed a wish to spend more time with our father, both by direct and indirect expressions of frustration with the current arrangements and made without any prompting from me.

8. And at [9]:

   X said that a week with each of his parents would enable him to spend more quality time with his father and also with Ms M, our father’s partner, with whom X is close. X mentioned that practising (religion omitted) with our father and with me has significantly improved his language skills and was instrumental in him being selected to attend the prestigious bi-lingual program at his school, (omitted). I believe spending additional quality time with our father in the future will consolidate and improve his (language omitted) fluency which is an important factor for his success at the bi-lingual program.

9. The father further relies on an affidavit of his partner, Ms M sworn 25 February 2016. She deposes to spending “considerable time” with X, including nights at the applicant’s home when X is present.  At [7] she deposed that:

   X has told me on countless occasions that he wants to spend equal time with his parents.  He is a very intelligent and mature boy and believes the current arrangement gives him only a limited time with his father. He has stated that he considers the arrangement “unfair” for himself and also for his father.

10. In summary, therefore, the applicant seeks a further report from Mr G on the basis of that reporter having as previous involvement in the matter and in arguing that X, at 12 years of age, is now able to maturely and rationally articulate his views as to his living arrangements between his parents and has indeed been consistently expressing those views. 

11. The respondent mother opposes the application proceeding further and including the obtaining of a report from Mr G. She concedes that X has made statements consistent with wanting to spend more time with his father but says that he has done so coincidentally with returning from extended visits with the father. The implication to this argument is that the child is manipulated either directly or subliminally in his views.

12. The mother argues that there has been no change of circumstances or any of such materiality that the threshold imposed by Rice & Asplund has been crossed. She acknowledges and concedes that prior to the orders of September 2013 X was then expressing a wish to spend more time with his father and that then, like now, the father was seeking an order for equal time between the parents. 

13. The mother says that the parents entered into consent orders in September 2013, when fully informed and understanding of X’s stated wishes and, in fact, in anticipation of the obvious fact of X becoming older and more mature, specifically and by consent, included in those orders a provision that the parties would again address X’s living arrangements and with consideration as to his own views in 2018.  She relies upon, as does the father, Mr G’s report from interviews in August 2013 and specifically at [53] where the reporter says:

    If orders are made at the next hearing, Ms Middleton is open to this arrangement being reviewed and, subject to there being no reasons to the contrary, X’s time with Mr Sansom could be extended (as was the case with (omitted) when he reached a similar age) once he commences his secondary education in two years time.  Perhaps this needs to be included in any orders made so as to give Mr Sansom some optimism that any orders made at the next hearing can be varied and his time with X increased.

14. In his recommendation at [59] of that report, Mr G includes:

    …orders be made for the above arrangements to be reviewed once X commences his secondary education.

15. In summary, therefore, the father relies on Mr G’s observations from 2013 that it might be prudent to “review” X’s views and hence, his living arrangements once he commences secondary school. That, of course, is this year.

16. The mother, however, argues that the parties themselves, fully informed and armed with Mr G’s report, agreed themselves that the review period would happen but not until 2018.  She says, therefore, there is no significant change in circumstance from that which existed in 2013 when, firstly, X was expressing a wish to spend more time with his father and, secondly, the parties had enjoyed the benefit of Mr G’s observations and recommendations.

17. The principle in “Rice & Asplund” is well and long established. Its rationale is a simple and understandable one, being to avoid for children the stresses, either directly or vicariously, of their parents being engaged in regular litigation regarding those children.  Accordingly, the Courts over the years have acknowledged that “final” orders in respect of children can only be so within the context of an understanding that the vagaries of life will impact on the circumstances of children or their parents and may necessitate further litigation in respect of the children. The Courts have been careful, however, to include important adjectives to be read with the phrase “change of circumstances” and such as “material”, “substantial” and “significant”. 

Consideration

1. There is some merit and appeal in the mother’s argument. Certainly, it is clear that the parties themselves contemplated a review of X’s living and parenting arrangements and they themselves decided to do so in 2018. This indicates a consideration of the circumstances existing at the time of the orders including the information available from Mr G’s report.  Further, it is clear that the orders sought by the father in 2013 and in his current application are in similar terms and hence do not of themselves ground any change in circumstance. Similarly, Mr G’s report confirms that X was in 2013 making statements that he preferred to spend more time with his father and yet the parents reached consent orders contrary to those stated views.  The father asserts that X is again making similar statements of his views and preferences. 

2. Superficially, therefore, it is difficult to see any change in circumstance, or certainly of any materiality, from the consent orders agreed in 2013. Nevertheless, and on closer reflection, to take such a clinical view of the circumstances and context is to neglect the very nature of the fluidity of children’s views and their various levels of maturity and rationality. Section 60CC(3) of the Family Law Act and the authorities make it clear that children’s views are to be taken into account in respect of parenting orders and the child’s ultimate best interests, but to be done so with reference to factors such as voluntariness, maturity and rationality.  The period since the making of the orders in 2013 is not an insignificant one given the development of a child. Indeed, this is the change in circumstance asserted by the father.  X was 10 years of age when his parents reached consent orders in 2013.  He will soon turn 13 years old.  He has transited from primary to high school. It is entirely conceivable that his levels of understanding and maturity have changed or developed over such a period of time. Fundamentally this is the material change in circumstance asserted by the father.

3. That being the case and given the statutory requirements under section 60CC(3) of the Act, I am of the view that the threshold in Rice & Asplund is crossed and that X’s views should be investigated in the usual way being from a family report. It is entirely proper in all of the circumstances that Mr G be the author of that report. I will order accordingly. 

4. The results of Mr G’s forensic exercise are, of course, only speculative at this stage and it is entirely possible that the father’s assertion will not receive support. If this be the case then I see no reason why a further application under the Rice v Asplund principle should not be able to be brought and considered.

5. I will hear the parties as to any issue in the costs of preparation and provision of the family report.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 17 May 2016