Searson and Searson

[2016] FCCA 3195

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEARSON & SEARSON [2016] FCCA 3195

Catchwords:
FAMILY LAW – Rice & Asplund argument – determined as preliminary issue – final consent orders made in May 2015 on the first day of the final hearing – mother seeks to relocate – circumstances largely existed at time of final hearing.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Marsden & Winch [2009] FamCAFC 152

Miller & Harrington [2008] FamCAFC 150

Rice & Asplund (1979) FLC 90-725
SPS & PLS [2008] FamCAFC 16

Applicant: MS SEARSON

Respondent: MR SEARSON

File Number: MLC 4487 of 2014

Judgment of: Judge Harland

Hearing date: 6 December 2016

Date of Last Submission: 6 December 2016

Delivered at: Dandenong

Delivered on: 9 December 2016

REPRESENTATION

Counsel for the Applicant: Ms Sudholz

Solicitors for the Applicant: Coote Family Lawyers

Counsel for the Respondent: Ms Brennan

Solicitors for the Respondent: Westminster Lawyers Pty Ltd

ORDERS

1. The application filed 5 September 2016 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 4487 of 2014

MS SEARSON

Applicant

And

MR SEARSON

Respondent

REASONS FOR JUDGMENT

1. The mother seeks to relocate to the (omitted) in Queensland. The father says that the rule in Rice & Asplund applies to the circumstances of this case and that the mother should not be allowed to relitigate.[1]

   [1] (1979) FLC 90-725 (“Rice & Asplund”).

2. The parties entered into consent orders on the first day of the final hearing on 25 May 2015.

3. The parties have three children, eight year old twins, X and Y born (omitted) 2008, and six year old Z born (omitted) 2010 (“the children”).

4. The mother relied on three affidavits she prepared and filed on 5 September 2016, 17 October 2016 and 1 December 2016 as well as an affidavit by her mother and her partner Mr J.

5. The respondent father relies on his affidavit filed on 17 October 2016 and affidavits by his parents.

6. The father argues that there is no change of circumstances.

Discussion of legal principles

1. The rule in Rice & Asplund is well-known. In that case, the Full Court of the Family Court of Australia had to consider what principles should apply when a court is faced with an application to change an earlier parenting order. Evatt CJ said the following:

   The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order into the reasons for 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… Change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that… 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.

2. The trial Judge has discretion as to whether to consider the Rice & Asplund principle as a preliminary issue or after a full contested hearing.  This case was argued before me as a preliminary issue. This is appropriate in the circumstances of this case.

3. It is important to bear in mind that the rule in Rice & Asplund is merely a manifestation of the best interests principle.[2]

   [2] See SPS & PLS [2009] FamCAFC 152 (“SPS & PLS”); Marsden & Winch [2008] FamCAFC 16 (“Marsden & Winch”), [47].

4. In Marsden & Winch the Full Court stated at [50]:

   Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made.  Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case.  How is that decision to be made?  The court must look at:

   (1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.

   (2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.

   (3) If there is such likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself.  Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.

5. Many Full Court of the Family Court decisions have discussed the Rice & Asplund principle. Both counsel for the parties referred to Marsden & Winch and SPS & PLS.

Summary of the mother’s argument

1. The mother argues that there has been a significant change in circumstances. She draws attention to [39]-[45] of her affidavit filed on 1 December 2016.

2. The applicant says it is now 18 months since the orders were made. Significantly she first raised the issue of wanting to relocate with the father on 15 April 2016, less than 11 months after the final orders were made.

3. The applicant referred to SPS & PLS and Nygh J’s comments which are extracted in that decision. She also referred to Marsden & Winch. She says that the issue of relocation was not raised in the earlier proceeding. She says those proceedings focused on risk issues due to the father’s mental health and the spend time arrangements.

4. The mother says that whilst she was in a relationship with her partner then it was not at the stage that it is now. She says her partner now owns a property in Queensland and cannot move the business which he runs there. He has owned that business for ten years. They want to have a baby together.

5. She also says she is in dire financial circumstances, working three jobs to support the children. The children attend private schools and always have. Her parents have indicated to her that they cannot keep providing financial support. The mother also says that the father does not acknowledge how her unhappiness impacts on the children. The mother has been offered a job on the (omitted) which will give her flexible working hours enabling her to take the children to and from school.

6. She says the father is unreliable in his child support payments which add to her financial strain.

7. The mother argues that it is clear from the evidence that the issue of relocation was not disclosed at the time of the final hearing. The separation took place three and half years ago. It was fraught with issues about the father’s mental health. There has not been extensive litigation between the parties previously. The mother says she does not intend to re-agitate the issues present at the final hearing. The mother says it would not be in the children’s best interests to prevent her from litigating the relocation issue. Whilst acknowledging that new factors are not entirely present her relationship was not established at the time of the final hearing and she is now in dire financial straits.

8. The mother says that the father does not engage in the children’s schooling and does not attend their extra-circular activities so that what she is proposing in terms of the father’s time is not will not have a great impact because of the block periods of time she is offering. She says her proposal will not have a significant impact on the father’s relationship with the children but will be of great benefit to the children and to her.

Summary of the respondent’s argument

1. The father points out that the mother had been in a relationship for a year with her current partner at the time the parties consented to the final orders. He refers to the mother’s own trial affidavit filed on 20 May 2015. At [72(b)] she refers to the father not paying child support and being in arrears. At [72(g)-(h)] she refers to borrowing money from her mother to pay for the children’s private school fees as she wanted the children to remain at their school. She also talks about money she has borrowed from family members.

2. Ms W prepared a family report dated 16 September 2014. The mother says that relocation was not raised in that report and that the report was not tested. It is true that the family report was not tested as the parties chose to settle after having the benefit of the family report a psychiatric report of the father and the parties’ affidavits. The principles referred to in Rice & Asplund and subsequent cases apply regardless of whether orders were made by consent or after a contested hearing. The relevance of the family report is in considering whether or not there has been a significant change of circumstances since the orders were made. The father points to [69] of that report where Ms W says the mother’s application indicates a “high desire of control and a low level of trust”. She said there was no evidence that the father cannot make sound decisions for the children or that he would want to relocate. She stated that neither parent should “relocate to an area that renders it virtually impossible for the other to spend time with the children.”

3. The father also draws attention to the mother’s affidavit filed on 1 December 2015 and in particular [16] and [17] where she refers to her relationship with her partner Mr J.  She says they met on 28 May 2014. She says during that period he travelled to Victoria to see her about every three weeks or so and she travelled to see him every 6 weeks or so. At [17(b)] she says that they have been in a committed relationship for two and a half years.

4. The father draws attention to [83] and [84] of SPS & PLS where the court referred to the purpose of the rule is to discourage endless litigation. It is necessary to look at the broader context of the circumstances of the particular case. He also draws attention to [58] and [59] of Marsden & Winch where the Court said:

   57.    In Miller & Harrington (supra) the Court posed the question:

   105.  Adapting the language used by Warnick J in SPS and PLS [supra], the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?

   58.    That question might be better formulated in another way in the following proposition, namely that there is a requirement:

   (1)     for a prima facie case of changed circumstances to have been established; and

   (2)     for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.

Conclusion

1. Having considered the material relied on by the parties and the oral submissions I am not satisfied that the mother has established a prima facie case that there has been a significant change of circumstance. Many of the issues the mother raises were issues raised at the time of the final hearing or which could have been raised.

2. The respondent submits that whilst the mother’s partner did not swear an affidavit in the 2015 proceedings her relationship with him was a well-known fact and she must have contemplated was the future of her relationship at that time. It was a long distance relationship then as it is now. He says that what the mother is doing by seeking to raise the relocation now is avoid the recommendation in the family report.

3. The mother has acknowledged in her affidavit that there have been three occasions where she has not facilitated time between the father and the boys in accordance with the orders. The father says there have been other times as well. The father says it amounts to four weeks. The mother’s evidence raises concerns about her capacity to facilitate the father’s relationship with the children whilst she offers significant time in her proposal, the court remains concerned about her willingness and capacity to do that once she has relocated. I acknowledge that she does not need to establish that she would be successful in her application but in these concerns together with her failure to establish a significant change of circumstance given the fact that her relationship existed at the time of the final court orders (the relationship has progressed but she herself says that the relationship was a committed one at the time the final orders were made) as well as this, the financial issues existed at the time I am not satisfied that allowing further litigation which would involve the children being subjected to a further family report as well as the conflict between the parents continuing would be in the children’s best interests.

4. I dismiss the mother’s application.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 9 December 2016