SCVG and KLD

[2009] FMCAfam 708

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SCVG & KLD [2009] FMCAfam 708

FAMILY LAW – Rice & Asplund threshold issue – whether change of circumstances warrants revisiting parenting orders – no existing order for parental responsibility – child with serious ongoing medical condition – threshold met.

Family Law Act 1975, ss.60CC, 61C, 61DA

Cortes & Cabrera [2007] FMCAfam 293
G & G (2000) FamCA 12
Gotch & Gotch [2009] FamCAFC 3
King & Finneran (2001) FLC 93-079
Marriage of McEnearney (1980) FLC 90-866
Miller & Harrington [2008] FamCAFC 150
Rice & Asplund (1979) FLC 90-725
SPS & PLS [2008] FamCAFC 16
SCVG & KLD [2008] FMCAfam 1147

Applicant: SCVG

Respondent: KLD

File Number: SYC4380 of 2008

Judgment of: Altobelli FM

Hearing date: 6 April 2009

Date of Last Submission: 6 April 2009

Delivered at: Sydney

Delivered on: 10 July 2009

REPRESENTATION

Counsel for the Applicant: Mr Richardson SC

Solicitors for the Applicant: Adrian Twigg & Co

Counsel for the Respondent: Ms Rees

Solicitors for the Respondent: Macphillamys

ORDERS

1. The Mother’s Application for summary dismissal of the Father’s Application filed 29 July 2008 be dismissed.

2. If the Mother is to amend the Response filed 1 October 2008, an Amended Response must be filed and served within 28 days.

3. The matter is adjourned to 17 August 2009 at 9.30am for mention.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC4380 of 2008

SCVG

Applicant

And

KLD

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is, in effect, what is commonly known as an application for summary dismissal of an application for parenting orders relating to two children, [X] who is seven years old, and [Y] who will be five years old next month. The children’s father is the applicant in this case. He would like to vary orders made by Moore J on 17 May 2006. The children’s mother is the respondent who asks the Court to dismiss the father’s application on a summary basis. In effect she asks the Court not to allow the father’s application to proceed. The mother argues that there are no changed circumstances that would warrant a reconsideration of the orders made 17 May 2006. The mother’s application is commonly known as a Rice & Asplund application, based on the case of that name reported at (1979) FLC 90-725.

Background

1. At an earlier stage of these proceedings I dismissed an oral application made by the father and published my reasons on 24 October 2008 reported at [2008] FMCAfam 1147. I adopt and incorporate into the present reasons for judgment the Background referred to at paragraphs 2-4 of that judgment.

2. The father’s application filed 29 July 2008 seeks to set aside and discharge the orders of Moore J from an operative date. He applies for equal shared parental responsibility, for the children to be returned to Sydney and to live with him, and to spend time with their mother. His proposal for the mother’s time depends on whether she herself returns to Sydney, or remains in [B]. In substance the father seeks to reverse the decision of Moore J.

3. In the mother’s response filed 1 October 2008, she seeks an order on a final basis that the father’s application be dismissed, and that on an interim basis that it also be dismissed, following a hearing “of the threshold issue of the rule in Rice & Asplund.”

The Applicable Law

1. The rule in Rice & Asplund (1979) FLC 90-725 has been described as a rule or principle to the effect that “where there has already been a final order in respect of parenting issues, before the court embarks on a rehearing of those issues, the applicant must establish a significant change of circumstance’: SPS & PLS [2008] FamCAFC 16. In SPS & PLS the Full Court constituted by Warnick J made a number of other observations about the rule. The term ‘threshold’ was interpreted to mean “the first question to be determined” (paragraph 46). In the present matter it was agreed between the parties that the Rice & Asplund issue was to be treated as a threshold issue and thus could potentially dispose of the application at a very early stage. Warnick J further reflected on the rule at paragraph 48 where he states:

   48. 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”.

   (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.

2. It is important to note that the application of the rule is merely a manifestation of the best interests principle as it is formulated in Part VII of the Family Law Act. In the present case, therefore, regard must be had to Part VII of the Act as it is currently enacted, and not as it was at the time of the original decision.

3. The rationale of the rule in Rice & Asplund is to discourage litigation in parenting matters, particularly when change is inevitable in families both before and after separation. Families are by their inherent nature dynamic, and so litigation about parenting issues must be discouraged unless the change is a significant or substantial one. In SPS & PLS Warnick J thought that other reasons for the rule included the public interest in the finality of all litigation (paragraph 56) and avoiding cases where one judge substitutes his or her own opinion of what is in the best interests for that of another judge, though both opinions are based on the same or similar facts (paragraph 58). In the Marriage of McEnearney (1980) FLC 90-866 Nygh J suggested at p.75400 that another reason for the rule was to protect children from “the enormous psychological harm” of the litigation.

4. The application of the rule is closely connected with the nature and degree of the change sought. In the present case the father seeks, for all practical purposes, a reversal of the existing orders rather than some slight modification of the same. If the father’s application is allowed to continue, this means the scope of the enquiry will be broad and thus the changes he asserts need to be more far-reaching: SPS & PLS at paragraphs 82-83. Warnick J expressed this at paragraph 84 in these terms:

   84… The essential question however is as to the sufficiency of new events to provoke a new enquiry.  The answer to this question involves putting events in the context of the broader circumstances pertaining to arrangements for a child and measuring the significance of the events against the significance of the steps that might follow in light of them.

5. In Miller & Harrington [2008] FamCAFC 150 at paragraphs 69-73 the Full Court distinguished between the terminology used in financial cases, and in parenting cases, and suggested that a Rice & Asplund application ought not to be described as a “striking out” or summary dismissal application because the best interests principle in Part VII of the Act still applies. Nonetheless in my opinion these remain convenient informal descriptions provided there is no misunderstanding about the substantive process to be followed.

6. The procedure to be adopted in these cases was discussed by FM Wilson in Cortes & Cabrera [2007] FMCAfam 293 at paragraphs 18-19:

   18. What the cases do not make clear is the process that the court should follow if it decides the threshold question in advance on a preliminary basis.  That is, should the application be dealt with as on a demurrer or strike out application, and the court only look at the material of the applicant and decide, on that material alone, whether, assuming it is accepted, there is sufficient evidence to warrant the earlier orders being revisited.  Or should the court treat the application similarly to a summary judgment application, and look at the material of both sides, and decide whether there is a serious issue raised which justifies the earlier orders being revisited.  Or should the court effectively conduct a trial on the preliminary issue, with evidence and cross examination on the alleged change in circumstances.

   19. There is some guidance as to the approach to be adopted.  In R & B H,  supra, the use of language that the court should be left in no doubt that it is necessary to revisit the parenting orders supports a critical analysis of the applicant’s material.  Although the passage from King & Finneran seems to suggest that court looks at all material then available to the court, which encompasses the material from both sides, it seems to me that the court should logically follow a three step process, sequentially dealing with the three questions articulated in paragraph 18 above.  Each case will vary of course as to the stage at which the decision can be made that there is/is not sufficient evidence to warrant a re-opening of the parenting issues.  As the learned authors of Australian Family Law & Practice, Brown & Fowler, observe at [16-360], the Full Court of the Family Court has made it clear that the question of whether there were circumstances which required a reconsideration of a parenting issue might, but need not, be determined as a preliminary issue.  However, the court may consider that in light of the alleged changed circumstances, it was more appropriate to consider all the facts of the case before deciding whether the changes circumstances existed.  An applicant’s material might disclose no change in circumstance such that the application can be summarily dismissed without a respondent being required to put on evidence.  An applicant’s material might raise the suggestion that there is a changed circumstance which requires investigation but after reading the respondent’s material the court might be satisfied that there is nothing in the point raised.  The court may, as a matter of discretion determine the threshold issue without testing the evidence.  Alternatively there maybe contested issues of fact as to whether there are changed circumstances in which case a court may need to hear from witnesses and allow cross-examination.

7. The Full Court in Miller & Harrington at paragraph 91 described the above discussion by FM Wilson as “a useful one”. Indeed it is, particularly in the present case where, as will be seen below, the mother does very little indeed to adduce evidence to rebut the father’s evidence going to changed circumstances.

8. The Full Court in Gotch & Gotch [2009] FamCAFC 3 has emphasised the importance of taking the case of the applicant for variation at its highest, or as established at face value.

The Issues

1. The issue in this case is whether the evidence adduced by the father demonstrates that there have been significant changes in the circumstances of the children such that it is in their best interests to revisit the issue of parenting orders relating to them, even through this last took place in May 2006?

The Evidence About Changed Circumstances

1. Even though this matter was dealt with before me on a summary basis, there was an abundance of evidence available. The father filed three affidavits, and his partner filed two affidavits. The mother filed one affidavit. I had available the Reasons for Judgment of Moore J delivered 13 April 2006 and the decision of the Full Court (Coleman, Warnick & Thackray JJ) delivered 24 May 2007. Moreover I had the single expert report of Associate Professor Quadrio dated 20 October 2005 and an updated supplementary report that became exhibit 23 before Moore J.

2. A preliminary, but significant observation I make about the evidence is this. The mother’s affidavit, which was sworn well after the father’s main affidavit was sworn, filed and served, makes little effort to present an alternate version of the facts asserted by the father, and corroborated to some extent by his partner. Indeed there is very little evidence in the mother’s affidavit that is pertinent to the present issue, and which was not already plainly evident in other materials before the court (eg the single expert reports, the judgment of Moore J etc). The mother acknowledges at paragraph 19 of her affidavit that [Y]’s health continues to be of concern.

3. It was central to the father’s case that there were facts amounting to changed circumstances which, in effect, required investigation. In a situation where, for all practical purposes, the mother does not contest the factual issues on which the father bases his argument of changed circumstances, the court is left to accept the factual matters asserted by the father, and then focus on whether those facts amount to changed circumstances. From a factual perspective, therefore, the Court is free to take the father’s case at its highest, and without any relevant doubts as to the factual matters asserted. Had the mother put the facts in issue, the case might not have proceeded in a summary fashion, and it might not have been so easy to form a conclusion based on the father’s evidence.

4. The father gives evidence about a medical incident involving [Y] in January 2008. He asserts it was a life threatening incident. There was, according to him, a clear disagreement with the mother about a significant issue relating to [Y]’s medical care. The mother presents no alternative version of the facts in this regard, other than annexing to her affidavit a report dated 15 July 2008 from Dr C, a Paediatric Haemotologist/Oncologist. The mother deposes to [Y]’s health continuing to be of concern. The father asserts that in the absence of any orders of Moore J relating to parental responsibility, the mother acted as sole decision maker and, in effect, excluded him from decision making. He seeks an order for equal shared parental responsibility. It is clear from the available facts that the parents have a fractured relationship evidenced by poor communication and high conflict. When this observation is applied to a family situation where one of their children suffers, according to both of them, a potentially life-threatening medical condition, any uncertainty about parental responsibility become a very significant potential problem for the child. In my opinion it is no answer to say that s.61C applies, and that each parent has parental responsibility because if that is the case it merely demonstrates the problem, not the solution. When parents experience poor communication and high conflict, allocating to each parent full and unfettered parental responsibility is unwise from the child’s perspective. Moreover it is no answer to say that s.61DA applies i.e. that there is a presumption of equal shared parental responsibility, because the mother opposes the “making [of] a parenting order in relation to a child” (s.61DA(1)) that would trigger the application of the presumption.

5. It is possible that the medical incident involving [Y] in January 2008 is not so much a ‘changed circumstance’ in the present context, as a clear example of a lacuna in the current orders that helps to demonstrate, on the facts of this case, why it is in the best interests of the children that the application not be summarily dismissed. Thus the issue of parental responsibility is not a mere academic issue in this case, it is a very significant one. The evidence about this incident goes potentially further, however, as the father asserts it is an example of the mother’s lack of willingness to facilitate and encourage a close and continuing relationship between the children and their father (s.60CC(3)(c)). The reasons for judgment of Moore J suggest that her Honour was quite confident about the mother in this regard. The subsequent events relating to [Y]’s ongoing medical problems culminating in the January 2008 disagreement between the parents, do tend to indicate that the father has at least an arguable case based on this consideration.

6. The father gives evidence about the children expressing their views to him which could be variously interpreted as either living with him in Sydney, or spending more time with him. Whilst the mother could not be expected to comment in her affidavit about what the children say to their father, she could have deposed either about what the children do, or do not, say to her about the issue raised by the father. Once again the Court is left in a position where it must accept what the father says in his affidavits. Before Moore J the children were far too young to have their views considered. Now they are seven and nearly five. The Court recognises that even if the children are expressing the views asserted by the father, a significant issue remains about the weight to be given to such views in the circumstances of this the case.

7. Nonetheless this represents a change of circumstance and a relevant arguable issue at a final hearing.

8. The father gives evidence about behaviour of the children that is of concern. He refers, for example, to [Y] wetting her bed and experiencing nightmares, and some regressive behaviour by [X]. The mother makes no comment about these assertions. These are not significant issues before Moore J. The cause of this behaviour is unknown, though the father at least implicitly attributes this to the children missing him, the rigorous travel involved in implementing the contact order, [Y]’s health and what he perceives to be the hindered or obstructed telephone communication he experiences with them. These are not insignificant issues that tend to indicate changes in the children’s lives since the decision of Moore J in April 2006.

9. In general terms the father emphasises that when Moore J published her reasons and made orders over three years ago [X] was still three years old and [Y] one year old. They are now seven and nearly five respectively. [X] now attends [B] Public School where she is in kindergarten, and [Y] is at preschool two days a week and in day care one day a week. The significance of the ages of the children relates to their developmental stages, and not just their chronological age. Experience in the family law jurisdiction indicates that children of the age of [X] and [Y] have experienced significant development in their physical, social-emotional and cognitive skills in the last three years. The Court cannot ignore this. The father submits this is a change of circumstance, and the Court accepts that it is.

10. There are other matters raised by the father as amounting to changed circumstances where it is by no means clear that this is the case. For example the Court doubts whether the impact of travel on the children, the lack of contact with their half-siblings, and the lack of educational facilities amounts to changed circumstances. They were all matters that were carefully considered by Moore J.

11. The father also asserts that a relevant changed circumstance is the enactment of the Family Law Amendment (Shared Parental Responsibility) Act in 2006, shortly after Moore J’s decision was published. I agree that this is a relevant factor, but not a determinative one on its own.

Conclusion About Changed Circumstances and Best Interests

1. The Court is satisfied that, taking the father’s evidence at its highest, a finding of changed circumstances is made out based on a combination of facts relating to parental responsibility, the mother’s lack of willingness to facilitate a close and continuing relationship between the children and their father, the children’s views, changes in the children’s behaviour that might go to the nature of their relationship with him or to the effect of changes in their circumstances, and the changes in the children’s age and developmental states that goes to their maturity and background. It is the combination of these facts that results in the Court’s finding of changed circumstances. In my opinion these are matters that go beyond what the Full Court in Rice & Asplund referred to as the change which “is an ever-present factor in human affairs”. This is not a case of “re-litigating essentially the same issue at the behest of disappointed parties” (G & G (2000) FamCA 12 at paragraph 30) but rather one where the Court has made “an assessment on the material then available to the court” and concluded that it is necessary and proper in the best interests of the children the subject of litigation” (King & Finneran (2001) FLC 93-079 at p.88367) to allow further proceedings.

2. The Court is most conscious of the fact that the parents and children will now be involved in further litigation. My concerns about this are clearly stated at paragraphs 13 and 14 of my reasons for judgment in this matter of 24 October 2008. I have concluded, however, that it is in the best interests of the children that the application be allowed to proceed. One of the matters I consider in this regard is the risk of further litigation (particularly in relation to the treatment of [Y]’s medical condition) even if I were to dismiss the father’s application now. The uncertainty that exists about parental responsibility invites at the very least potential contravention proceedings, but possibly also parenting proceedings that could not be dismissed pursuant to the rule in Rice & Asplund. There is, in a sense, a real risk that no court order can prevent further litigation about these children for the time being.

3. The Court also expressly takes into account the orders that the father seeks in the proceedings. They are materially different to those sought by him before Moore J (see paragraph 31 of her Honour’s Reasons for Judgment) but even if they were not, this would not of itself justify summary dismissal in a case where changed circumstances are found to have been established. Moreover it is not appropriate for this Court to prognosticate as to the prospects of the father’s orders being made, or of the current orders being varied. Once changed circumstances are established at a final hearing a court is not bound either by the current orders or the proposals of the parents: to adopt any other approach would be to pre-empt a decision that can only be made after all the evidence has been considered in a proper judicial process.

Appointment of a Single Joint Expert

1. My earlier decision in this matter dismissed the father’s application for the appointment of a single joint expert to assist the Court in determining the Rice & Asplund issue. As the Court has now decided to dismiss the mother’s application for summary dismissal it might be appropriate for the parties to reconsider this matter. I will relist this case before me on 17 August 2009 at 9.30am for further directions and I invite the parties to consider the issue of exert evidence before that date.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Associate: 

Date:  10 July 2009