Simco & Cripps
[2021] FedCFamC2F 717
Federal Circuit and Family Court of Australia
(DIVISION 2)
Simco & Cripps [2021] FedCFamC2F 717
File number: SYC 5662 of 2020 Judgment of: JUDGE MORLEY Date of judgment: 20 October 2021 Catchwords: FAMILY LAW – Rice & Asplund hearing – Mother moved cities with the child pending delivery of final orders after contested hearing – Court finds in favour of reopening proceedings – matter expedited. Cases cited: Defrey & Radnor [2021] FamCAFC 67
Nielsen & Springer (No. 2) [2020] FamCA 1079
Rice & Asplund [1978] FamCA 84
SPS & PSL [2008] FamCAFC 16
Swenson & Brantley (No. 2) [2020] FamCAFC 205
Trewitt & Brock [2021] FedCFamC1A 9
Division: Division 2 Family Law Number of paragraphs: 74 Date of hearing: 12 April 2021 Place: Sydney Solicitor for the Applicant: Litigant in person Counsel for the Respondent: Ms Petrie Solicitor for the Respondent: Capon & Hubert Lawyers ORDERS
SYC 5662 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SIMCO
Applicant
AND: MR CRIPPS
Respondent
order made by:
JUDGE MORLEY
DATE OF ORDER:
20 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Application of the Father, that the Mother’s application to re-open the proceedings pursuant to the principle in Rice & Asplund is dismissed.
2.The application of the Father to transfer the proceedings to the Canberra Registry is dismissed.
3.The Final Hearing of this matter is expedited, so far as is possible.
PENDING FURTHER ORDERS, THE COURT ORDERS:
4.That both the Mother and the Father do all things necessary to ensure that the child X born in 2011 attends such face to face school days as occur at B School, Canberra, for the remainder of the 2021 school year.
5.That until the start of the 2022 school year beginning at the start of Term 1 2022, the parents are to each comply fully with the final parenting orders made on 28 November 2019.
6.That from and including the first day of X’s school attendances for the 2022 school year, orders 4, 5, and 7 of the final orders made on 28 November 2019 are suspended.
7.That the parents shall by no later than 12 November 2021 agree upon a school within reasonable proximity to the Mother’s place of residence in Sydney to be attended by X in the 2022 school year, and in the event no such agreement is reached by the parents by 12 November 2021, then each shall notify the Chambers of Judge Morley by no later than 4:00PM on 15 November 2021 and the proceedings will be relisted thereafter at 9:30AM on 29 November 2021 for determination by the Court of the school to be attended by X for the 2022 school year.
8.THE COURT NOTES THAT the matter has not been listed on 29 November 2021 currently and will only be relisted upon the parties advising Chambers per order 4 herein.
9.That from the commencement of the school year 2022, X shall spend time with his Father as follows:
10.During school term, each alternate weekend from 7:00PM on Friday until 4:00PM on Sunday, the first such occasion to commence on the first Friday of each school term;
11.At the Father’s option he may choose to extend X’s alternate weekend time with his Father under order 5(a) or 5(e) from the end of school on Thursday until the start of school on Monday, provided that X remains in the Greater Sydney Area until the end of school on Friday, and is in the Greater Sydney area by 8:00PM on the Sunday, and on such occasions the Father shall collect X from school at the start of his time, ensuring that he attends school on the Friday, and deliver X to school on the Monday;
12.During the whole of the Term 1, 2, and 3 school holidays commencing at 7:00PM on the day school attendance ends for X and concluding at 4:00PM on the day before school attendance resumes for X;
13.During the school holidays at the end of Term 4, for the first 33 days of the school holiday starting at 7:00PM on the day school attendance ends for X and concluding at 4:00PM on the thirty-third day, and the day school attendance ends for X is not counted as one of the 33 days; and
14.On Father’s Day weekend, from 7:00PM on Friday until 4:00PM on Sunday.
15.That from the commencement of the school year for 2022, X shall communicate with his Father by telephone or video chat program or application, at the Father’s option, each Monday, Wednesday, and Saturday that X does not spend time with his Father, at some time between 6:00PM and 7:00PM.
16.That from the commencement of the school year for 2022, X shall communicate with his Mother by telephone or video chat program or application, at the Mother’s option, on Monday, Wednesday, and Saturday that X is spending time with his Father during school holidays, at some time between 6:00PM and 7:00PM.
17.That each of the parents shall ensure that X is at liberty and able to make a telephone call or text message to the other parent at any time that X wishes and that during such calls, X has privacy for his telephone conversation with his other parent.
18.That all changeovers at the start and end of X’s time with his Father, other than under order 5(b), shall occur by the Mother delivering X to the Father’s place of residence at the start of the time and the Mother collecting X from the Father’s place of residence at the end of the time EXCEPT when the Father will be in Sydney with X at any time at all during X’s alternate weekend time with his Father under order 5(a) in which event, the Father shall collect X from the Mother’s place of residence at the start of his time, and the Father shall return X to his Mother’s place of residence at the end of his time.
19.That in the event the Father proposes to spend time with X on an alternate weekend pursuant to order 5(b), the Father shall give the Mother notice in writing of that intention by no later than 7:00PM on the preceding Friday, ‘writing’ herein to include email and telephone text message.
20.Liberty is granted to each of the parties to relist the matter on the giving of three days notice to the other party and to the Court of the reason for the relisting.
THE COURT FURTHER ORDERS THAT:
Expedited Hearing
21.The matter is listed for a Compliance Check for Final Hearing before Judge Morley at 9:30AM on 3 December 2021.
Applications
22.Direct the Applicant Mother file and serve any Amended Initiating Application in accordance with Rule 2.52 of Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) (‘the Rules’) by no later than 4:00PM on 3 November 2021.
23.Direct the Respondent Father file and serve any Amended Response in accordance with Rule 2.52 of the Rules by no later than 4:00PM on 10 November 2021.
Evidence
24.The evidence of each witness, including of the parties, is to be contained in one affidavit only by each such witness and multiple affidavits by a witness, including a party, will not be read at trial.
25.No party may rely on an affidavit sworn and filed prior to these Compliance Check Directions.
26.Direct the Applicant Mother and Respondent Father file and serve all affidavit material on which they intend to rely at trial by no later than 4:00PM on 29 November 2021.
27.Direct that any document to be used in conjunction with an affidavit that is impractical to form an annexure to that affidavit must be exhibited to the affidavit and delivered in hard copy and in a form in compliance with Rule 8.15 of the Rules to the Sydney Registry of the Federal Circuit and Family Court of Australia and addressed to the Chambers of Judge Morley and must arrive at the Registry by no later than 4:00PM on 30 November 2021.
Expert Evidence
28.Direct that by no later than 4:00PM on 29 October 2021 the Respondent Father is to cause to be provided in writing to the Mother details of two (2) proposed single expert witnesses, being clinical psychologists for the preparation of an expert’s report for the assistance of the Court in relation to the best interests of the child X born in 2011 in relation to the issues for final hearing in these proceedings.
29.Direct that by no later than 4:00PM on 3 November 2021 the Mother is to notify the Father in writing of which of the two (2) nominated single expert witnesses she selects to prepare that expert’s report for the assistance of the Court.
30.Direct that by no later than 4:00PM on 8 November 2021 a letter of joint instruction is to be forwarded by the parties jointly to the selected single expert witness.
31.Direct that the report of the single expert witness be available and provided to the Court in accordance with the Rules by no later than 4:00PM on 29 November 2021, HOWEVER in the event that such direction proves impossible in the circumstances, grant liberty to the legal representative for the Respondent Father to make an application to Chambers in compliance with the Protocol for Communicating with Chambers for an extension of such time to a date selected by the Court in late January 2022.
32.Direct that the costs of the single expert selected pursuant to these orders in relation to preparation and provision to Court be met by the Applicant Mother.
Undertaking as to Disclosure
33.Direct that the Applicant Mother and the Respondent Father file and serve an Undertaking as to Disclosure in relation to that parties’ obligations to provide disclosure under Part 6.1 of the Rules by no later than 4:00PM on 29 November 2021.
Costs Notice
34.Direct the Applicant Mother file and serve a Notice as to Costs in accordance with Rule 12.06(3)(b) by no later than 4:00PM on 22 October 2021 in relation to today’s Court event.
35.Direct that the legal representative for the Respondent Father file and serve upon their client a Notice as to Costs in a form compliant with Rule 12.06 the Rules by no later than 4:00PM on 22 October 2021 in relation to today’s Court event.
36.THE COURT NOTES THAT the Court will require compliance by both parties with Rule 12.06 the Rules for the Compliance Check of this matter on 3 December 2021.
Subpoenas
37.Pursuant to the Court’s power in Rule 1.31 of the Rules, dispense with Rule 5.07 of the Rules.
38.Grant leave to the Applicant Mother and the Respondent Father to issue subpoenas in relation to the final hearing.
39.Grant leave to the Applicant Mother and the Respondent Father to issue more than five subpoenas.
Terms of Settlement
40.Leave is granted to the parties in the event that the matter is resolved and Terms of Settlement prepared and signed to forward those Terms to my Chambers for the purpose of orders being made in Chambers and Hearing dates vacated.
THE COURT NOTES THAT:
A.On the current judicial calendar, if the matter is compliant at the compliance check and the Court is minded to set the matter down for final hearing, that final hearing would occur in February 2022.
B.The Court has given consideration to section 68L of the Family Law Act 1975 (Cth) particularly in view of the central matter being the issue of relocation, however the Court considers in the best interests of the child and in light of the possibility of systems abuse affecting the child, a single expert’s report will suffice in assisting the Court, and the Court accordingly considers that the appointment of an Independent Child’s Lawyer is not required
C.This matter relates to parenting only.
D.This matter is estimated to take two days for final hearing.
E.Consideration will be given to allocating a trial date/s at the Compliance Check, provided that (inter alia) the parties have complied with these directions.
F.Non-compliance with these directions may result in the matter not being allocated a trial date/s and referred to family dispute resolution.
G.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
H.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (‘the Scheme’) for representation but any such application must be made at least 12 weeks prior to the final Hearing.
I.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
J.If section 102NA applies and a party becomes unrepresented after these directions were made, that party is required to promptly advise the Court.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Simco & Cripps has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY:
These are the Reasons for Judgment that were delivered verbally and ore tenus on 20 October 2021. They have been settled herein in written form. Grammatical errors and accidental errors in reference have been amended for ease of comprehension. Legal citations have been included in full and incorporated into these Reasons.
These are reasons delivered orally and in short form pursuant to what is allowed under section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’), being in relation to parenting issues in proceedings between Ms Simco, the applicant mother, hereinafter referred to as the mother, and Mr Cripps, the respondent father, hereinafter referred to as the father.
The proceedings concern the parenting arrangements for their only child X born in 2011.
These Reasons relate to a threshold hearing that took place on 12 April 2021, being a threshold hearing to determine whether order would be made in accordance with order 1 sought by the father in the interim orders sought in his response to application for final orders filed 30 October 2020, that is “The mother’s application be dismissed”, or, if the mother’s application commenced by initiating application filed 18 August 2020 seeking further final and interim parenting orders could proceed.
In short, the threshold hearing was to examine whether in applying the principle in the well-known case of Rice v Asplund [1978] FamCA 84, the matter would proceed to a reconsideration on both interim and final basis of parenting arrangements for X; or if the existing final orders would remain, the operative question being whether there are sufficient changed circumstances either in existence or proposed in the proceedings to justify the matter being revisited with, as always, the best interests of X being the paramount consideration, and therefore the effect of further proceedings on X being a principal part of the Court’s consideration after determination as to whether or not there is significant change occurred, occurring or proposed.
At the interim hearing, the mother was self-represented and the father was represented by Ms Petrie of counsel.
On 12 April, the matter went to a hearing on the evidence with cross-examination of the mother and cross-examination of the father. Oral submissions were made by Ms Petrie on behalf of the father and by the mother on her own behalf, and then short submissions in reply by Ms Petrie as counsel for the father.
The material relied upon by the mother for the threshold hearing was:
(1)A case outline document filed 10 April 2021 and prepared by the mother;
(2)The mother’s initiating application filed 18 August 2020;
(3)The mother’s application in a case filed 26 February 2021, in which she set out the orders that she sought in relation to the threshold hearing. Such orders included a raft of proposed interim parenting arrangements, which was an issue that went beyond the threshold question before the Court;
(4)A notice of risk filed on 18 August 2020 with the initiating application, and I note at this point that the notice of risk filed by the mother in compliance with the Rules did not assert any risk.
(5)Her affidavit adopted by her electronically pursuant to the prevailing practice direction under the SARS-CoV-2/COVID-19 pandemic on 23 February 2021 and filed the next day.
At the interim hearing, the father relied upon:
(1)His case outline document prepared on his behalf by his counsel, Ms Petrie. That case outline document included the orders sought by the father that I will come to shortly, and substantial written submissions made on his behalf by Ms Petrie.
(2)His response to application for final orders filed 30 October 2020;
(3)His notice of risk filed 30 October 2020, and I note at this point also that in his notice of risk filed under the former Federal Circuit Court Rules 2001 (Cth), the father did not assert any risk; and
(4)His affidavit affirmed by him on 15 January 2021 and filed on 18 January 2021.
In preparation for the interim hearing, I carefully read all of the material relied on by each of the parties. In preparation for delivering these Reasons, I again carefully read all of the material relied upon by each of the parties, and I reviewed the notes and sound recording of the hearing on 12 April 2021, including the oral submissions made by Ms Petrie for the father and by the mother on her own behalf.
In relation to the evidence, in these Reasons I will not blend the evidence and instead will deal with the evidence in each case in turn, starting with the evidence of the mother as the applicant as contained in her affidavit relied upon.
The parties commenced a cohabitation in 2007 and separated on 17 December 2011. The only child of the relationship is X, X having been born in 2011. X was 11 months of age when the parties separated. At the time of the threshold hearing, X was 10 years of age.
The parties entered into final orders in relation to parenting issues by consent on 21 May 2014.
The parties have also entered into a binding child support agreement on 3 September 2018, and despite there being those final orders by consent in place from May 2014, the parties had further proceedings on a contested basis culminating in a final hearing before Judge Dunkley then in the Federal Circuit Court of Australia over three days in June 2019, and on 28 November 2019 his Honour made final orders between the parties.
Those final orders provided that:
(1)The mother have sole parental responsibility for X for all major long-term issues, except issues relevant to X’s education and his name;
(2)That X live with his mother;
(3)That X spend time with his father
(a)During school term time, each alternate weekend from after school Thursday to before school Monday during school terms, during each other alternate week from after school Wednesday to before school Thursday;
(b)For the second half of the term 1, 2 and 3 school holidays;
(c)On the weekend that includes Father’s Day, from after school Friday to before school Monday;
(d)For in effect half of the term 4 school holidays, alternating first half/second half year by year;
(e)An order that each parent be permitted to travel internationally with X during the period when X is in their care during school holidays;
(f)Changeovers not taking place at school take place by the father collecting X from his mother’s home at the start and the mother collecting X from the father’s home at the end of his time with his father;
(g)That if the father’s time with X coincides with the Mother’s Day weekend, that period of time be suspended;
(h)What is known as a non-denigration order, extending to removing X from the presence of any other person denigrating the other parent, members of the other parent’s family or household; and
(i)An order that the mother notify the father in writing within a timely period of any decision made by her pursuant to the order granting her sole parental responsibility for issues other than education and his name.
As I said, his Honour heard the matter over three days in June 2019, made the orders that I have just gone through on 28 November 2019, but before those orders were made, the mother applied for and gained a job with Employer C that required her to undertake the work for that job in Sydney.
Up until that time, both parties had been living in Canberra. At the time of the June 2019 hearing, both parties and X, of course, were residing in Canberra, Australian Capital Territory.
As a result of the mother obtaining that job, she began taking up residence in Sydney, she asserts on a full-time basis, but, of course, punctuated by the necessity for her to comply with the final orders made by his Honour and to allow X to continue attending at his school in Canberra from 30 October 2019, nearly a month before the final orders were made.
It is plain on the evidence that there was no application made by the mother to reopen the evidence in the final hearing between the development in her employment and the development in her principal place of residence and the date on which his Honour made the orders.
The mother asserts in her evidence for the threshold hearing that at the time of the June hearing she had no intention to move to Sydney. Self-evidently, on her evidence, that intention arose between the end of that hearing and the time his Honour made the orders.
She says that in August 2019, two months after the hearing, she applied for the position with the Employer C “as a finance professional in Sydney”. She subsequently received an offer of employment for the advertised position, that offer and her acceptance of that offer occurring before the orders were made. The mother asserts that upon obtaining that employment she immediately informed the father of her decision to accept the job offer.
The father’s evidence is at variance with that.
The mother says she commenced the job at the Employer C in Sydney on 30 October 2019. As we will all remember, that occurred before the SARS-CoV-2/COVID-19 pandemic struck the world out of China and particularly before it became an issue in Australia, which occurred in about March of 2020.
The mother says that following that 30 October 2019 commencement, she continued to comply with the final orders made by his Honour in November 2019 and travelled between Sydney and Canberra every week.
In 2020, she purchased a home in the suburb of Suburb D in Sydney.
In August 2020, she filed the initiating application commencing these proceedings.
In that initiating application – and it is germane to that threshold issue, of course – the final orders that she sought were:
(1)That she have sole parental responsibility for X for all major long-term issues except his name, therefore seeking to add education to her role of having sole parental responsibility for X.
(2)A continuance of the order that X live with his mother;
(3)A variance to the time that X would spend with his father in consequence of relocation of X’s place of residence from Canberra to Sydney, such that it would be:
(a)Each alternate weekend during school term time, being once every four weeks in Canberra from 7 pm Friday until 4 pm Sunday, with the mother to do all of the transport, and then
(b)Once every alternate four weeks, it would be after school Thursday to before school Monday, occurring in Sydney with the father collecting X from school and delivering him to school.
(c)She sought that the father have two-thirds of school holidays “(or half if the father preferred)”.
(4)She did not seek any interim orders.
The father’s response to that interim application sought that the mother’s application be dismissed, hence the matter going to a threshold hearing under the principle in Rice & Asplund [1978] FamCA 84. He sought alternate orders if the Court determined that there were sufficient substantial changed circumstances to justify the matter going on and it was found to be in the best interests of X for the matter to go on, those alternative orders providing that on a final basis X live with his father and spend defined time with his mother alternate weekends during school term, half of school holidays and so forth.
Accordingly, the competing final proposals of the parties involve the mother’s application that X’s principal place of residence be relocated from Canberra to Sydney and that he continue living with his mother and spend time with his father that was at variance with that provided in the orders of November 2019.
The father’s application was that the mother’s application be dismissed, but if not dismissed, that order be made that he live with his father and spend time with his mother, being the reverse of the situation provided in the November 2019 orders. The matter is clearly before the Court as a relocation matter between Canberra and Sydney, and if proceeding beyond the threshold hearing, competing live-with applications.
The mother gives evidence that X underwent tests for ADHD and in relation to his intelligence quotient in July 2020, and that at that time X was diagnosed with anxiety and ADHD of the inattentive type. He was referred to a paediatrician, the mother says, “in Sydney for medical treatment for ADHD”.
It is in the father’s evidence that an appointment had been made for X to consult with a paediatrician in Canberra. The mother gives her evidence that the earliest appointment that could be obtained for X in Canberra with a paediatrician was six months away from when it was sought, occurring in February 2021, and she was able to secure an appointment with a paediatrician in Sydney within one month from when it was sought.
The mother refers to the binding child support agreement entered into between the parents, and pursuant to that binding child support agreement the father from about February 2020 began paying the full amount for X’s school fees for X to attend his school in Canberra at B School. At the applicable time of the threshold hearing, X was still attending B School in Canberra in year 5. He had been put down for attendance at B School from when he was below school age, and he had been attending that school for a couple of years prior to the threshold hearing.
It is quite plain on the evidence of the mother and the father that except for the time that X was attending school in Canberra or spending time with his father pursuant to the orders, he would accompany his mother to Sydney to live in the house that she had purchased in the suburb of Suburb D from May 2020. Accordingly, at the time of the threshold hearing in April 2021, there had been a period of about 11 months when X was, in effect, living largely between Canberra and Sydney, and during that time he continued to attend school in Canberra and his mother maintained up until the threshold hearing a place of residence in Canberra.
The mother gives evidence that she proposes that in the event that X is able to live with her on a full-time basis at the home she has purchased in Suburb D in Sydney, she has identified two schools that he would attend, being either E School in Suburb D or F School, also at Suburb D.
The mother gives evidence that the father’s relatives all live in Sydney and that the mother asserts that on quite frequent occasions the father would bring X to Sydney to spend time with his paternal grandparents and other members of the family.
The mother says in paragraph 60 of her affidavit:
[X] has a strong, meaningful relationship with his father.
On all of the evidence, that statement would seem to be borne out and entirely true.
It is inherent in the evidence that X has been primarily in the care of his mother since the parties separated when X was 11 months old.
The mother was cross-examined at the threshold hearing on 12 April 2021 by Ms Petrie, counsel for the father. I reviewed the evidence coming from the mother’s cross-examination.
In relation to the father’s evidence, he goes through the litigation history between the parties, starting, almost from the time of their separation, the final orders by consent in May 2014, the hearing before his Honour in June 2019 resulting in orders 28 November 2019.
He indicates that he has been a resident in Canberra since 2005 and that he is employed as a professional with Employer G in Canberra. He says that prior to taking the employment with the Employer C in Sydney, the mother was employed as a finance professional with a large organisation based in Canberra. The father gives evidence that at the time of the threshold hearing, the mother retained a place of residence in Canberra, being H Street, Suburb J in the ACT.
The father asserts that it was on Wednesday, 4 December 2019, more than a month after the date on which the mother says she accepted and commenced her employment with the Employer C, that the mother said to him during a meeting between them these words: “I have a job in Sydney and I will be seeking to move X as well”. He gives evidence that, despite taking the job “for much of 2020”, the mother maintained the required pattern of time between X and his father as required in the final orders of November 2019.
The father provides two school reports of X’s from B School in Canberra and I have looked carefully at those school reports. The father gives some extensive evidence about not only X’s engagement in sporting activities, particularly through his attendance at B School, but the father’s participation with X’s sporting activities, soccer and football. He gives evidence that X appears to be thriving with playing sports and playing for his school, B School, and that he has sleepovers with his classmates. The father says that during X’s earlier primary school years, X had some problem with primary school, referred to as “emotional dysregulation and reading problems”.
He said that as far as he could assess, X was doing well at B School, making improvements in his educational attainment. He says the B School sporting activities involve a wide range of sports. He says X was primarily committed to soccer coming from the interest his mother has and soccer from an interest his father has.
In most of the world, of course, soccer is not soccer. It is properly referred to as football.
He gives his evidence that the mother took X to Sydney to her new home for most of her weekends during 2020, and on those occasions, X was not able to engage in his regular sport arrangements in Canberra.
He said that the mother was for 14 years a finance professional with the Employer K placed in Canberra, and that he for 15 years has been a professional with Employer G and that he works a four-day week. He gives evidence that in the course of the discussions between father and mother in relation to the mother’s wish to relocate X to Sydney, the mother offered to relieve the father of the responsibility under the binding child support agreement of paying X’s school fees and to pay them herself, an offer the father says he rejected. He rejected that, of course, in the context of seeking that X remain principally resident in Canberra and attending B School.
In paragraph 40, the father says:
[X] has continued to attend school as provided for in the orders, and in all the circumstances, the only change in circumstances has been that unilaterally made by [Ms Simco].
I may be wrong, but I cannot find in the final orders of November 2019 a requirement that X attend B School in Canberra. At the time his Honour decided those parenting proceedings, both parties were resident in Canberra and, as I understand it, there was nothing before his Honour to indicate that the mother intended to move to Sydney.
The father says that both he and X together generally have some time in Sydney over school holiday periods, spending time with the father’s family.
In relation to X’s diagnosis with ADHD, the father says he is not altogether sure about the diagnosis. I will quote from paragraph 48:
I am not sure that he does in fact suffer from ADHD.
and:
I do not like him being on Ritalin.
Nevertheless, the father has acted in accordance with medical advice and in accordance with the prescribed medication. He says that the mother has not given him information about the doctors X has attended or the diagnosis or medication. Nevertheless, he seems to have been compliant with what is required.
At the end of his affidavit under a heading Change of Venue, the father indicates that he seeks that the matter be transferred to the Canberra registry of the Federal Circuit Court. That is part of his application before the Court and one of the issues before the Court on the threshold hearing. He says that having to travel between Canberra and Sydney to attend Court events will impact on his working commitments and involve expense. He indicates that he has been advised hearing dates in Canberra can be obtained in shorter a timeframe than in Sydney, that inquiries through his lawyers indicate about 18 to 24 months wait in Canberra, and up to three years wait in Sydney for obtaining a hearing date.
The father was cross-examined at the threshold hearing by the mother and I have reviewed his evidence from that cross-examination.
This is what is clearly known as a Rice & Asplund threshold hearing. That refers to the principle in Rice & Asplund and the law on which, if it began with the enunciation of the Full Court, including then-Chief Justice Evatt in 1979, has been subject of many considerations by the Full Court over the years.
I will begin with the law applicable in this threshold hearing, with a decision of Aldridge J, sitting as the appellate jurisdiction of the Federal Circuit and Family Court of Australia, Division 1, in Trewitt & Brock [2021] FedCFamC1A 9, and I refer there to paragraphs 56 and 57:
[56] As to the test itself, the rule in Rice & Asplund is not a statutory provision to be construed according to its terms, but it is rather a general principle of law, first identified in Rice & Asplund itself, and subsequently discussed and explained in many cases, some of which have been mentioned above. The nature of that discussion varies in response to the particular facts and submissions before the Court in each case. It is an error, therefore, to identify the particular words taken from just one of those cases and to treat that statement as if it was indeed a statutory requirement.
[57] In Elmi & Munro [2019] FLC 93-912, and as has been said many times:
38. The essence of the issue to be determined is whether there has been a material change in circumstances which indicate that it would be in the best interests of the child for there to be a reconsideration of the parenting orders.
Recent consideration has been given to the principle in Rice & Asplund by the Full Court of the Family Court of Australia, and I go firstly to the Court’s decision in Swenson & Brantley (No. 2) [2020] FamCAFC 205. I note that that is an authority that I was referred to specifically by Ms Petrie in her case outline document. That does, and helpfully, contain the extensive quote from the Full Court in that case.
From the Full Court’s decision in Swenson & Brantley (No. 2), I incorporate into these reasons paragraphs 19 to 25 inclusive of the Full Court’s judgment:
[19] More importantly, I consider any differences between the two phrases as semantic and not substantial. As the authorities make clear, the essential point in the application of the rule in Rice and Asplund is the balancing of the new circumstances against the undesirability of further litigation involving the child. The nature of that exercise will depend very much upon the nature of the changes relied upon. Obviously enough, if there are no changes or if the changes are insignificant or unsubstantial, there will be little to justify reconsideration of the earlier orders.
[20] The starting point is Rice and Asplund itself, where Evatt CJ said at 78,905-78,906:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the 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 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 (passage quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
[21] In the oft quoted case of SPS and PLS (2008) FLC 93-363, Warnick J said:
[81] Thus, in my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
…
[83] 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.
[84] Although I do not suggest that, when judgments of the court in which the rule is discussed are read in full, the rule is in any case inaccurately or even insufficiently expressed, sometimes “shorthand” descriptions of the rule are used and are then taken up by others in later cases. Some phrases used seem to better direct attention to the essential question than others. For example, the phrase used by Nygh J in McEnearney (supra), that a court should discourage a parent from coming back to court where there “is really no startling new circumstance” focuses attention on the character of the circumstance itself. Similarly, terms such as “a substantial change in circumstance since the making of an existing order”, as used by the Full Court in D and Y (supra), may tend to focus attention on the character of a particular event or events. 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.
(Emphasis added)
[22] These authorities make clear that a change in circumstances is not itself the answer to the question as to whether the earlier parenting orders should be reconsidered, but that those new matters, in all of the circumstances, must be sufficient to justify or to provide for such a hearing.
[23] In Marsden v Winch (2009) 42 Fam LR 1, consistently with the above authorities, the Full Court said:
[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 a 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.
[24] As the respondent points out, although the above cases refer to a significant change in circumstances, other cases describe it differently. In D and Y (1995) FLC 92-581 (“D and Y”) and Bennett and Bennett (1991) FLC 92-191 (“Bennett”), the Full Court referred to a “substantial” change in circumstances. It is clear from the reasons in those matters that the Court did not intend to impose a test that differed from that in Rice and Asplund itself. Indeed, in D and Y at 81,764, the Court posed the ultimate conclusion as to whether there had been a sufficient change of circumstances to justify the reopening of the issue of custody.
[25] The approach of the primary judge was therefore fully in accord with well-established principles, although her Honour would not have erred if she had in fact used the word “substantial”. I consider that her Honour did not look at the nature of the asserted changes of circumstances alone. Rather, her Honour was at pains to weigh those changes against the disadvantage to the child of being involved in further litigation. In my opinion, this ground of appeal has not been made out.
Further, I take into account the decision of the Full Court of the Family Court of Australia in Defrey & Radnor [2021] FamCAFC 67, and in relation to that judgment, I incorporate into these reasons paragraphs 16 to 21 inclusive of that judgment:
Law in relation to Rice & Asplund
[16] The evidence of the father had to be accepted at its highest, and as Warnick J said in SPS and PLS (2008) FLC 93-363 (“SPS and PLS”) at [81] and [84], the essential question to be asked is, assuming the evidence of the father is accepted, are the “new events” sufficient to provoke a new enquiry (see also Miller & Harrington (2008) FLC 93-383 at [105], noting that an alternative formulation of the question has been propounded by the Full Court in Marsden v Winch (2009) 42 Fam LR 1 at [58] with the emphasis on the establishment of a prima facie case of change of circumstances).
[17] As indicated, the father submits that the changes to the orders he proposes are not radical and consequently the changes which he relies upon to justify a reopening of the litigation need not be substantial.
[18] In SPS and PLS, Warnick J said at [48(v)] and [82]–[83]:
[48] … The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
…
[82] This proposition lay behind what Evatt CJ said in In the Marriage of Zabaneh (1986) FLC 91-766 at 75,587 (Fogarty and Renaud JJ agreeing):
The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account.
Different issues arise in relation to reinstatement of access. The issues involved in reconsidering access relate much more directly to the children and their needs, their own attitudes and wishes. Time may play a part in this. This Court would not wish to subject children to the repeated intervention of court proceedings to the extent that they have to be reassessed every few months, or every year, by court counsellors to see if they maintain the same attitudes. That certainly could not be encouraged, but there may come a time when there are such changes in the attitudes of the parties, or such evidence relating to the children and their needs and attitudes towards their parents, that it would be reasonable to reconsider access.
[83] 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.
[19] In our view, the Rice & Asplund test applies to all applications which seek to revisit parenting orders. Sometimes the test will be easily satisfied even though the issues to reconsider are major ones and sometimes the test will be easily satisfied even though the issues to be revisited are relatively minor in character. In both situations, the overarching test is to be applied, namely, (having regard to the best interests of the child) new events or changed circumstances have to be sufficient to provoke a new inquiry.
[20] It is also useful when considering, as a preliminary matter, what issues a parent might be permitted to re-litigate, to remember that under s 69ZQ(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), there is a mandatory requirement to decide which of these issues in the proceedings require full investigation and hearing.
[21] The rule in Rice & Asplund involves the exercise of discretion and not merely a process of making factual findings. That is because the “rule” is a manifestation of the best interests principle. All s 60CC(2) and (3) matters, so far as they are relevant, must be considered, to the extent that they can be, based on the material before the court. The rule focuses particularly on s 60CC(3)(l) and the preference to make final orders in parenting matters that are least likely to lead to the institution of further proceedings in relation to the child. Axiomatically that is because unless other considerations are more weighty, it is not in the best interests of a child for that child to be the subject of repeated litigation between his/her parents. There is a focus in an application of this kind upon the change(s) in circumstances that outweigh the negative impact of reopening litigation. Although when considering the preliminary issue, if cross-examination is not permitted, then the evidence of the father is to be taken at its highest, and it is not only the father’s evidence that is considered.
I have gained some assistance in relation to the law on threshold issues involving the principle in Rice & Asplund in this case by a decision of Mead J of the Family Court of Australia, sitting in Adelaide, in Nielsen & Springer (No. 2) [2020] FamCA 1079, a matter where the facts bear quite a distinct resemblance to the facts in this matter, in that it involved final parenting orders having been made between the parties following a four-day final hearing, those orders made in September 2019, and then involving a move by the mother from Adelaide to a place in New South Wales, and her Honour’s consideration of a threshold hearing involving the principle in Rice & Asplund.
In this matter, the change proposed by the mother in the orders she seeks on a final basis, a relocation of X’s proposed place of residence from Canberra to Sydney, necessarily involving with it a change of school for X from the school he has attended for the past several years to a school in appropriate proximity to where the mother proposes he live with her in Suburb D. It would also involve a consequent effect on the reality of the duration of regular time that can be spent between X and his father, and therefore it is a proposal, in the mother’s application, that final orders be made that varies significantly from the parenting arrangements contained in the final orders made in November 2019.
The mother proposes that relocation, and the father opposes it, and further proposes that if the matter proceeds beyond the threshold hearing, and the mother does relocate to live in Sydney, that the child live with him and spend time with his mother, that proposal also being a significant change of circumstances from that contained in the final orders of November 2019. It is a reversal of the live with arrangement. It is inherent in this matter, that the mother has been X’s primary long-term carer and emotional attachment since the time that he was 11 months of age and the parties separated. That is referring to primary long-term carer and emotional attachment, and not to diminish or depreciate the meaningful relationship and emotional attachment between X and his father, which was found by Judge Dunkley, as is put before me in the evidence, to be a significant meaningful relationship and to be very much in X’s best interest that he be given continuing opportunity to maintain and continue to develop that meaningful relationship with his father.
The changes proposed by the mother in the orders she seeks, and the consequences thereof, including the competing proposal of the father if the matter proceeds, are not changes that could be addressed by way of “small alterations” in the existing orders that “may require only a short and narrow inquiry”, being phrases from the authority SPS & PSL [2008] FamCAFC 16, at paragraph 83 in particular.
I am satisfied that if this matter proceeded to a final hearing, there is the possibility – and I stress at this point that it is a possibility and not to be misconstrued as any form of probability at all – there is the possibility of orders being made which vary the current parenting orders in a significant way.
The case outline provided by Ms Petrie, as counsel for the father, in paragraph 3.11 of her cogent and helpful written submissions, says:
The father submits that the mother’s proposed location with the child to Sydney is unrealistic and not child-focused. It will require a significant change in circumstances for the child, based entirely on the mother seeking employment in Sydney that is otherwise available to her in Canberra, and in circumstances where the current spend time with regime has only been in place for just over 12 months.
In fairness, I have quoted the whole of the submission, but there is acknowledgement, and proper acknowledgement, that the proposal of the mother is a proposal for significant change. The competing proposal of the father is a proposal for significant change. Accordingly, I have to go on to consider the nature of such possible significant changes against any potential detriment to X that may be caused by re-litigation of his parenting arrangements so as to achieve that significant change, and the competing proposals of the parents.
X, as I have already said twice, has been in the primary care of his mother since he was 11 months of age. The parties had a three-day final hearing before Judge Dunkley, and his Honour found that it was in X’s best interest that he live with his mother and that he spend what amounts to substantial and significant time with his father. That finding in relation to how the substantial and significant time was structured was made in the context of both parties residing in Canberra, and there being nothing before his Honour to indicate that there would be any variance to that. If the matter does not go forward to consideration by the Court on the parties’ competing proposals for significant change in circumstances, if the matter is dismissed at this point and attention only turned to the realities of some interim issues that arise, then the mother’s planned path in relation to employment and residence will be thwarted.
It would be untenable for the mother to maintain her full‑time residence for X in Sydney and yet for the current orders in relation to the time X spends with his father to be complied with, because to comply with those orders X really needs to be at school in Canberra, because it is far, far from possibly being in X’s best interest that he would change school to one in Sydney and yet spend Wednesdays, Thursdays each alternate week with his father during school term, from school, to school, and Thursday to Monday with his father, from school, to school, whilst his father is living in Canberra. This is not a consideration of the merits of the mother’s proposal that X’s principal place of residence be relocated from Canberra to Sydney.
Much of the evidence in cross‑examination and the submissions on both sides tended toward that issue, but the issue in the threshold hearing is whether there is, in reality, existent or proposed sufficient substantial change of circumstances to justify the Court in considering having another look at the matter and as to whether it going forward to a reconsideration is a matter in X’s best interest. In the reality of the evidence, as it is before the Court, the father puts the argument, through his counsel, clearly, that there should be no reconsideration, based upon the mother’s action, in awaiting the final orders from the hearing of June 2019, whilst, before those orders are made, seeking and accepting employment that requires her to be in Sydney, and after those orders are made, and without appealing those orders or bringing proceedings before the Court, purchasing a place of residence in Sydney, whilst maintaining a place to reside in Canberra.
Principally, on the basis that the circumstances that have arisen between the hearing in June 2019 and the final orders on 28 November 2019, and then between 28 November 2019 and 12 April 2021, give rise to a set of circumstances where there must be a resolution of the issue as to whether X will continue to live in Canberra principally, and therefore on what basis, as to whether the mother will be required to give up her home in Suburb D and maintain a home in Canberra or be required to maintain both homes, and as to whether X would continue to attend the school in Canberra or attend a school in closer proximity to the home of the mother in Suburb D, as she proposes, need to be resolved.
The other side of the coin, the black card to that red card, if you like, is that since X was 18 months of age, on his father’s evidence, these parents have been in conflictual litigation and have a very poor co‑parenting relationship, as found by his Honour, leading to the sole parental responsibility order in favour of the mother that his Honour made, and X has been the victim of his parents’ parenting litigation for almost the whole of his life. I weigh those competing concepts when considering the effect of further litigation on X, as against the thwarting of the ambitions of the parent who has been his primary carer, and with whom, under the current orders, he lives, or the giving way to supervening near impossibilities of the current orders being complied with, in circumstance where the mother resides principally in Sydney, and yet the orders require X to be with his father on school afternoons and mornings in Canberra.
I have already found that there are proposals, both of which put before the Court a significant change of circumstances in the event that the matter goes forward. There is consideration of the mother’s parenting capacity and effect upon X if her course in life that she is planning out is thwarted, and I hasten to add that the consideration here is in no way one of whether or not the mother should be punished or admonished or orders made by way of enforcing in consequence of her taking steps that are at variance with the intent and meaning of the final orders made, because the Court’s focus must be, first, foremost and always, on what is in the best interests of X.
I am satisfied that it is a matter that, if this matter proceeds to a re-hearing, gives rise to the possibility of the orders being varied in a significant way. I have considered the likely effect of the matter going forward on the best interests of X, and I find, on balance, that it is a matter where it needs to go forward to a final hearing, and that, accordingly, the application of the father that the proceeds be dismissed, under the principle in Rice & Asplund, that the orders of 28 November 2019 continue as they are, should be dismissed.
In relation to the father’s application that the matter be transferred to the Canberra Registry of the Court, based upon the cost and inconvenience to him of the matter remaining in Sydney, and also based upon the evidence contained in his affidavit, and on the knowledge of the affairs of the Court, there is no reason to doubt it as to the comparative delays between the Courts. I have to consider that application for change of venue. In context of the matter going forward to reconsideration, and having dealt with the matter to this point, I consider that it is a case appropriate in the best interests of X, who has been the victim of two sets of proceedings already, these the third, about his long-term parenting arrangements, that the matter be dealt with by a Court as soon as possible, and that, accordingly, the matter should remain in Sydney Registry, that the matter should be given expedition, and that that grant of expedition in the matter should be real, that is, that it should be brought on for hearing before me in the quickest available time, taking into account time needed by the parties to prepare themselves for final hearing and the Court’s availability to give it the required number of hearing days, so that it can be heard. But in saying that, I consider that it is a matter that should not be stretching out as continuing litigation, certainly no more than six months from now, and on that basis, I also dismiss the father’s application for transfer to the Canberra Registry.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley. Associate:
Dated: 15 August 2022
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