Singer and Barrie

[2017] FCCA 1633

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGER & BARRIE [2017] FCCA 1633

Catchwords:
FAMILY LAW – Parenting – Rice & Asplund application.

Legislation:

Family Law Act 1975

Cases cited:

Gotch & Gotch (2009) FamCAFC3
Marsden & Winch [2009] FamCAFC152
Rice & Asplund (1979) FLC90-725
SPS & PLS (2008) FLC93-363

Applicant: MR SINGER

Respondent: MS BARRIE

File Number: CRC 18 of 2015

Judgment of: Judge Terry

Hearing date: 11 July 2017

Date of Last Submission: 11 July 2017

Delivered at: Coffs Harbour

Delivered on: 14 July 2017

REPRESENTATION

Solicitors for the Applicant: Burridge Harris & Flynn Solicitors

Counsel for the Respondent: Mr O’Brien

Solicitors for the Respondent: MBT Lawyers

THE COURT ORDERS THAT:

1. Pursuant to s.11F of The Family Law Act 1975 the parties and the child attend a child inclusive child dispute conference with a family consultant Ms D in the Lismore Registry on 12 September 2017 at 9.00 am AND the parties are advised that if a person fails to comply with this order or any instruction the consultant gives to the person the consultant must report the failure to the court.

2. This matter is adjourned to 9.30 am on 16 October 2017 for further consideration in the Federal Circuit Court of Australia sitting in Newcastle.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT COFFS HARBOUR

CRC 18 of 2015

MR SINGER

Applicant

And

MS BARRIE

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Singer and Ms Barrie have one child, X, who was born on (omitted) 2005.

2. The parties separated on 17 November 2014. On 2 February 2015 the mother filed an application for parenting orders and on 7 July 2015 at the second mention of the matter final parenting orders were made by consent. They provided for the parties to have equal shared parental responsibility and for X to live with the mother and spend time with the father each alternate weekend and each alternate Wednesday overnight to Thursday during school terms and for half of the school holidays.

3. On 15 December 2016 the father filed an application seeking an order that X live in a week about shared care arrangement. He said that X had been expressing a wish to do so for about 12 months and he also raised a number of issues about the mother’s care of X, including an assertion that she was substantially living with a new partner and that X was in reality largely cared for by the maternal grandparents, which he said supported his case that X should spend more time with him.

4. The only order the mother sought in her response was that the father’s application be dismissed pursuant to the Rule in Rice & Asplund.[1]

   [1] Rice & Asplund (1979) FLC90-725

5. On 11 July 2017 I heard argument about whether the father’s application should be dismissed at a preliminary stage as the mother sought or whether an order should be made for the parties and the child to attend a child inclusive child dispute conference and further consideration of the matter occur after that.

Background

1. The mother is 33 and the father 38. They commenced a relationship in 2004 and finally separated on 17 November 2014 but according to the mother they had a number of separations prior to that.

2. The mother alleged that the father was episodically violent to her during the relationship and that she left the parties home with X on 17 November 2014 and began residing with the maternal grandparents after the father lost his temper and pushed her off a chair causing her to hit her head. She also alleged that at least in the latter stages of the relationship the father drank excessive alcohol and used cannabis.

3. In his affidavits filed this year the father made some limited admissions about his behaviour during the relationship although he characterised it as “not appropriate and detrimental to X” rather than as violent. He admitted some use of marijuana and speed during the relationship but said that the mother used these drugs as well. He denied excessive alcohol consumption and said that the mother was the one who drank heavily and that she had some misadventures and became aggressive when drunk.

4. On the mother’s evidence she always facilitated the father spending time with X during the parties’ separations and again on her evidence on 10 December 2014 she agreed to X spending time with the paternal grandmother who said that the father would be present. She alleged that the father retained X at the end of the visit and did not return him until 28 January 2015 and that this was connected with her refusal to sign a document agreeing to week about shared care.

5. On 2 February 2015 the mother filed an application which must have been prepared prior to 28 January 2015 because she sought a recovery order as well as parenting orders.

6. The parenting orders the mother sought on both a final and interim basis were that the parties have equal shared parental responsibility and that X live with her and spend alternate weekends from Friday to Monday during school terms and half of the school holidays with the father.

7. The mother sought an order for Carbohydrate Deficient Transferrin testing on an interim basis but despite the allegation in her affidavit that she was worried about the father smoking cannabis she did not seek a drug testing order.

8. The matter came before Judge Kemp on 16 February 2015 and he made interim orders by consent as proposed by the mother. He noted on the order that the parties hoped to attend a legal aid intervention conference. He did not order the father to file a response and the father did not do so.

9. The parties did attend mediation and on 7 July 2015, the next mention date of the matter, final orders were made by consent. They provided for the parties to have equal shared parental responsibility and for X to spend time with the father each alternate weekend and each alternate Wednesday overnight to Thursday during school terms and for half of the school holidays.

10. The court was handed a document headed “Application – Draft Consent Parenting Orders and allegations of abuse and family violence” which had been signed by the parties. The allegations concerning family violence and alcohol and drug abuse which appeared in the mother’s affidavit were noted and it was stated that these issues were addressed in the orders by the fact that the orders required limited contact between the mother and the father.

11. X thereafter spent time with the father in accordance with the orders.

12. On 15 December 2016 the father filed an application seeking an order for week about shared care. In his affidavit he asserted that the following matters warranted a change to the current arrangements:

    ·The mother had commenced a relationship with Mr R who lived 30 minutes from (omitted) and she was essentially living with him. X however was mainly living with the maternal grandparents in (omitted) and was being cared for by them during the week and when X did go to Mr R’s home he had to sleep on the couch.

    ·X had been saying for more than a year that he wanted to live in a week about arrangement.

    ·The father had tried to organise for X to attend extra-curricular activities of his choosing but the mother had prevented this happening.

    ·X’s school performance and attendance were not being properly monitored and attended to.

    ·Since mid-2016 the mother had prevented X having telephone communication with the father. 

    ·The father was aboriginal as was X by descent but the maternal family did not respect this.

13. The father provided some detail in support of his claims and he filed affidavits by the paternal grandparents and other persons who supported various aspects of his claims including that X was consistently expressing a wish to live in a week about arrangement.

14. The mother asserted as follows:

    ·She did sleep at Mr R’s home when X was with the father but she only occasionally slept there without X when X was in her care and that was because it was then easier for her to get to work from Mr R’s home. X did sleep on the couch when he and the mother stayed at Mr R’s home on alternate Saturdays but that was by choice; a bedroom was available for him.

    ·She had to leave for work at 6.00am and she arrived home between 5.00pm and 6.00pm and the maternal grandparent appropriately assisted her with the care of X and had done since separation.

    ·X did some extra-curricular activities but his homework had to come first.

    ·She was assiduously attending to X’s schooling.

    ·She had stopped telephone communication because the father had been verbally abusive to her.

    ·The first she had heard of the father being aboriginal was when she read his recent affidavits.

15. The mother provided detail in support of her claims and filed affidavits by Mr R and the maternal grandparents backing up her assertions. She did not respond in her affidavit to the father’s claim that X was asking for week about but in submissions her counsel said that she did not accept that this was his wish.

The submissions

1. The mother’s counsel submitted that the father had the onus of proving that there had been a change of circumstances and that if he did not discharge that onus his application should be dismissed.

2. He submitted that there was no evidence that there had been a change of circumstances which would justify reconsideration of the care arrangements for the child.

3. He further submitted that there would be no value in obtaining evidence about X’s views because children’s views did not determine the outcome in parenting proceedings.

4. Finally he submitted that on the state of the evidence there was no prospect of the father obtaining the order he sought namely an order for equal time. There had been family violence and even on the father’s case the parties’ relationship was too poor to make such an order reasonably practicable.

5. He submitted that the father had not discharged the onus he bore and that given all of these things the father’s application should be dismissed.

6. The father’s solicitor submitted that the evidence about the change in the mother’s living arrangements and about X’s views did establish a change of circumstances. She submitted that given X’s age his views were likely to be given significant weight at a final hearing and that it was noteworthy that the mother had not contradicted in her affidavit the father’s assertion that X was asking for equal time.

7. The father’s solicitor submitted that there had never been a proper inquiry into appropriate arrangements for X and that this should occur and that as a first step the court should obtain further information by ordering the parties and child to attend a child inclusive child dispute conference. 

Discussion

1. It has been accepted since not long after the commencement of the Family Law Act1975 that it is not in children’s best interests to be the subject of endless litigation about their parenting arrangements. In SPS & PLS[2] Warnick J referred to the 1979 case of Rice & Asplund and put it this way:

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

   … It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.

   [2] SPS & PLS (2008) FLC93-363

2. It has also long been accepted that there is a public policy interest in the courts resources not being strained and even misused by endless litigation. Warnick J also said as follows in SPS & PLS:

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

3. However when applying what has now become known as the Rule in Rice & Asplund it is important to bear the following in mind:

   i)First, as Warnick J said in SPS & PLS the touchstone always is the best interests of the child.

   ii)Second, while there are occasions where it is clear that the best interests of the child will be met by dismissing an application at a preliminary stage rather than allowing it to continue through the court system, there are also occasions where it is impossible to be sure at an early stage whether it is in a child’s best interests to allow litigation to continue.

   iii)Third, it is not the case that the only options open to the court when a fresh application is filed is to dismiss it at a preliminary stage after hearing submissions based on the material filed by the parties or to allow it to continue unchecked through the court system. There may be occasions where it is preferable to obtain some further information before finally determining whether to dismiss the application pursuant to the Rule in Rice & Asplund.[3]

   [3] Gotch & Gotch (2009) FamCAFC 3

4. In my view it is too early to determine whether it is in X’s best interests to reconsider the current orders and too early even to determine if there has been a change of circumstances.

5. The father did not file a response or affidavit in the original proceedings and there was no involvement in the matter by child dispute services. No hearing of any sort was ever conducted, no findings were made about issues in dispute and the reasons why the parties agreed to the orders in July 2015 is unknown to the court.

6. I do not consider that it would be in X’s best interests to stifle inquiry into the matter at this stage. It could simply mean that there is further litigation down the track.

7. The father’s assertion about X’s wishes is a central plank of his case. The court cannot determine on the state of the evidence at present where the truth lies about that but there is a mechanism available to obtain more information about X’s views in a timely fashion and without much additional cost to the parties and that is by ordering the parties and the child to attend a child inclusive child dispute conference.

8. A child’s views do not determine a case and I do not need a High Court decision to tell me that, it is in the legislation, but that does not make it inappropriate to at least find out what the views of a 12 year old are before deciding what course to take. One possibility is that X is telling his father what father wants to hear. If that is so it is in X’s best interests that we get information about his views sooner rather than later. It may settle the dispute. 

9. The Memorandum to the Court which is prepared following such a conference is useful for reasons other than providing information about the child’s views. The memorandum usually also identifies risk issues and comments on the co-parenting relationship and it may contain information not only about the child’s views about future parenting arrangements if he chooses to give them but about such things as his parents past actions, his interaction with the parents partners and extended family and his own living arrangements which can be valuable in assisting the court to form a view about whether the matter should continue through the court system.

10. Depending on the content of the memorandum of course the matter may not end after it is produced and I acknowledge that litigation is costly and stressful but this is not a case where there has been protracted litigation, previous reports and findings about the facts. Obtaining some additional information before considering early disposal of the matter is more likely to be in X’s best interests than sweeping the matter under the carpet with the risk of further litigation because issues fester unresolved between the parties without any objective input into the validity of each parties complaints or because there is genuinely an issue with the child’s views which needs to be addressed.

11. There will certainly be occasions when parties should not readily be allowed to litigate again even though orders have been made by consent and even though there is limited or no evidence about the reasons why the orders were made but every case turns on its own facts and in this case on balance it will be better for X if the issues are explored rather than ignored.

12. I intend to order that the parties attend an 11F child inclusive child dispute conference and I will not finally determine the mother’s application at this stage but will adjourn it for further consideration after the 11F memorandum is produced.

13. I finally note that I am not necessarily convinced that the father bears the onus of establishing that the matter should be allowed to continue and if the mother’s counsel has some authority for this proposition I would welcome receiving it.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:  14 July 2017