Solberg & Markwell
[2023] FedCFamC2F 552
•15 May 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Solberg & Markwell [2023] FedCFamC2F 552
File number(s): CAC 1533 of 2014 Judgment of: JUDGE W J NEVILLE Date of judgment: 15 May 2023 Catchwords: FAMILY LAW – Parenting – application to re-open proceedings following final orders in June 2020 – contravention applications – where the first and second Applicants are the respective Fathers to two daughters shared with the Mother in long-running and highly contested litigation – where the Mother finally relocated to the City AB region some two years or so after the final hearing and judgment in June 2020 – where new evidence arose from the Department of Communities and Justice following the more recent hearings – where previous Orders require the Mother to be granted leave prior to filing any new Applications – where the Father of the younger child amended his position following the trial – all Applications in relation to the older child are dismissed – all applications dismissed in relation to the younger child following variation of the Final Orders for the youngest child to return to the Father’s primary care pursuant to section 70NBA of the Family Law Act 1975 (Cth) Legislation: Family Law Act 1975 (Cth) ss. 60CA, 60CC(3), 65DAC, 65N, 70NAC, 70NAE, 70NBA, 117.
Children and Young Persons (Care and Protection) Act 1998 (NSW) s.248
Cases cited: Banham v Banham (2021) 64 Fam LR 361
Carriel v Lendrum (2015) 53 Fam LR 157
CDW v LVE [2015] WASCA 247
Childers v Leslie (2009) 217 FLR 124; (2009) 39 Fam LR 379
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
In the Marriage of O’Brien (1992) 16 Fam LR 723
Mahneey & Dieter [2020] FamCAFC 88
Marsden v Winch (2010) 42 Fam LR 1
Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654
Poisat & Poisat (2014) FLC 93-597.
Rice & Asplund (1979) FLC ¶90-725
SPS & PLS (2008) 217 FLR 164; (2008) FLC 93-363
Stephens v Stephens (2011) 44 Fam LR 117
Swenson & Brantley (No.2) [2020] FamCAFC 205
Walter & Walter [2016] FamCAFC 56
Division: Division 2 Family Law Number of paragraphs: 254 Date of last submission/s: 7 April 2023 Date of hearing: 4 October 2022 – Application in a Proceeding
5 October 2022 & 24 November 2022– Contravention
20 December 2022 – Mention/Direction
24 March 2023 – ContraventionPlace: City AB Solicitor for the Applicant Father (Respondent and Applicant to the Contravention Applications) AC Law Firm Respondent Mother (Applicant and Respondent in the Contravention Applications) Self-represented ORDERS
CAC 1533 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SOLBERG
First ApplicantAND: MR RANWICK
Second ApplicantAND: MS MARKWELL
Respondent
order made by:
JUDGE W J NEVILLE
DATE OF ORDER:
15 may 2023
THE COURT DECLARES THAT:
Contraventions, Pleas, and Findings
Contravention Application filed 22nd July 2022
(i)Contravention 3 set out in the Contravention Application filed 22 July 2022 was admitted but with reasonable excuse. The Court finds the Contravention is with reasonable excuse.
(ii)Contravention 4 set out in the Contravention Application filed 22 July 2022 was admitted but with reasonable excuse. The Court finds the Contravention is with reasonable excuse.
(iii)Contravention 5 set out in the Contravention Application filed 22 July 2022 was not admitted. The Court finds the Contravention is not established.
Contravention Application filed 7th March 2023
(iv)Contravention 1 set out in the Contravention Application filed 7 March 2023 was admitted but with reasonable excuse. The Court finds the Contravention is established without reasonable excuse.
(v)Contravention 2 set out in the Contravention Application filed 7 March 2023 was not admitted. The Court finds the Contravention is established.
(vi)Contravention 3 set out in the Contravention Application filed 7 March 2023 was not admitted. The Court finds the Contravention is established.
(vii)Contravention 4 set out in the Contravention Application filed 7 March 2023 was not admitted. The Court finds the Contravention is established.
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.The Application in a Proceeding, filed by the Respondent Mother on 13th January 2022, be dismissed.
2.The Contravention Application, filed by the Respondent Mother on 22nd July 2022, be dismissed.
3.The Respondent must pay the costs of the Second Applicant Father fixed in the sum of $6,000.00 within 60 days of the date of these Orders, being by no later than 4:00pm on 14 July 2023.
4.Orders 11, 12(b)(i) and 14 of the Orders of 30 June 2020 are hereby discharged.
5.D born in 2017 (‘D’) be returned to the Second Applicant Father no later than 4:00pm on 2 July 2023 at TOWN F SERVICE CENTRE.
6.A Recovery Order will issue immediately from Chambers and lay in the Registry pending compliance with Order 5 herein. Upon notification to the Court that Order 5 has not been complied with, the Recovery Order will issue immediately.
7.Thereafter, D shall live with the Second Applicant Father.
8.The Second Applicant Father have sole parental responsibility for D.
9.The Second Applicant Father shall keep the Respondent Mother informed of any decisions relating to any major, long-term issues relating to D via the Talking Parents application.
10.D shall spend time with the Respondent Mother as follows:
(a)Commencing 2 July 2023, for a period of 6 months, for one weekend per month, from 5:00pm on Friday until 5:00pm on Sunday on the first weekend of each month, unless otherwise agreed in writing
(b)Absent any reports by the Respondent Mother to Care and Protection within the following 6 months, and absent any adverse Application by the Second Applicant Father against the Respondent Mother regarding parenting within the following 6 months, commencing 2 January 2024, each alternate weekend from 5:00pm on Friday until 5:00pm on Sunday.
(c)Once the Mother’s time with the child moves to each alternate weekend as provided for in Order 10(b), the Final Orders of 30th June 2020 regarding holiday time will apply thereafter.
11.For the purposes of Order 10, changeover is to take place at the Town F Service Centre.
AND THE COURT NOTES THAT:
A.In the event that any contravention is filed by the Mother within the next 2 years that is similar in circumstances of those dealt with by the Court on these occasions set out in these reasons, it is likely, subject to evidence and submissions, that a strict or significant bond would be required of the Mother; and
B.In view of the many adverse findings against the Mother in this judgment, and earlier judgments by Judge Hughes, if any further Application is filed by either party, it will be heard by a Judge of the Court other than Judge Hughes or Judge W J Neville.
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 Solberg & Markwell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
What follows are the reasons for three discrete Applications, two from the Mother (Ms Markwell) and one from the Father of 5 (almost 6) year old D, Mr Ranwick. Fortunately, if not surprisingly, given the horrendous litigious history between the parties, in recent times at least, there have been few litigious contests between Ms Markwell and the Father of 12 year old B, Mr Solberg.
It is quite the understatement to remark that this matter has a complex and convoluted history in relation to two children: B who is the daughter of the First Applicant Father, and D who is the daughter of the Second Applicant Father. The current outstanding matters in which the Court must make a determination relate to (a) the Application in a Proceeding filed 13th January 2022 by the Mother, who seeks to re-open the parenting proceedings (which thereby requires consideration of the principles and threshold in Rice & Asplund)[1] and, in turn, to re-visit the Final Orders made by Judge Hughes on 30th June 2020, and (b) the Contravention Application filed 22nd July 2022 by the Mother, which concern alleged breaches by both Fathers. As a result of the Court’s determination that there was no prima facie case concerning Mr Solberg (B’s Father), the Contravention involving him was dismissed and thereafter took no further part in the litigation set out below.
[1] Rice & Asplund (1979) FLC ¶90-725.
These Applications were heard on 4th and 5th October and 24th November 2022. The gap between the October and November hearing dates arose from the circumstance where the self-represented Mother became increasingly ill during the initial hearing dates and effectively lost her voice. Consequently, the hearing was adjourned and a later date found to finalised the matter as it then stood.
Most recently is a third Application, this time a Contravention Application filed by Mr Ranwick on 7th March 2023 against the Mother for (a) unilaterally enrolling D in school notwithstanding there being an Order for equal shared parental responsibility, and (b) for withholding D from spending any time with him since January 2023 and where the Mother now, after the better part of almost 3 years, has returned to the City AB region, as she has repeatedly said she would, having lived in country Victoria for a time, among other places. This Application was heard on 24th March 2023, while judgment was reserved in the other, earlier two Applications.
All parties agreed that, rather than have separate judgments in relation to each Application, the reasons and Orders regarding all outstanding Applications could be dealt with in what might be called “consolidated reasons”.
In order better to understand the current Applications, it is essential to set out in full a copy of the Orders of Judge Hughes from June 2020. Those Orders in their entirety are at Annexure A to these reasons. Relevant parts from them, as required, will be set out in the body of the reasons along the way.
By way of further background (procedural and factual), following the completion of the hearing on 4th and 5th October 2022, judgment was reserved in relation to the Mother’s Application filed 11th January 2022.. With the part-heard Contravention hearing having concluded on 24th November 2022, as already indicated, judgment in relation to that Application was reserved with a notation that should the matter proceed to the question of penalty this will be done in Chambers on the basis of written submissions. All parties seemed to acknowledge and agree with this course to save having to come back to Court. While both the Mother’s Application to re-open, and her Contravention, were reserved, the Second Applicant Father filed a Response to the Mother’s Application in a Proceeding filed 11th January 2022. Mr Ranwick confirmed that, in his view, there had been (or was) a relevant change in circumstances sufficient to re-open the proceedings. He also sought leave to re-open the evidence in relation to parenting Orders regarding D, and to suspend the existing Orders. It followed that proceedings in relation to D be separated from any involving B. As noted above, most recently, on 7th March 2023, Mr Ranwick filed a contravention against the Mother as a result of, among other things, her withholding D from spending any time with the Father in circumstances where the child had been living primarily with the Father in Town E for the last 15 months or so.
As has been her wont throughout the litigation, the Mother attempted to file a further Application in a Proceeding, but was not able to do so without leave of the Court pursuant to Orders dated 25th March 2022. During this time, the New South Wales Department of Communities and Justice (“DCJ”) of its own accord provided the Court with information pursuant to s.248 of the Children and Young Persons (Care and Protection) Act1998 (NSW).
The matter was listed for a mention on 20th December 2022, following which liberty was extended to the parties to file supplementary submissions in relation to the material produced by DCJ and what, if any, changes should be made to the Final Orders dated 30th June 2020 pursuant to s.70NBA Family Law Act 1975 (Cth) (“the Act”). From time to time, various other pieces of information continued to appear, literally “out of the blue” from DCJ. This material was used by one or other of the parties but ultimately to little practical or useful effect.
Chronology
The repetitive, often-times tedious and doubtless exhausting litigation, which commenced in 2014, has led to a long and complex history that is nearly impossible to summarise in a brief chronology. Annexure B to these reasons is a brief chronology which can only capture some of the many events in this matter. Given its nature and duration, the litigation has often assumed almost a form of structural support (psychologically and otherwise), perhaps most notably by or for the Mother, to provide focus and purpose to the life, or lives, of one or more of the adults involved from time to time. Without being glib, or worse, it is almost as if one or more of the parties has needed to have the litigation running, including its many appeals as well, in order to give some direction and focus to their lives.
Because of the multiplicity of Applications before the Court, it is intended to be useful to everyone if relevant principle is set out here (rather than at the end of the judgment as would normally be the case). By providing an outline of principle here, it is also intended to facilitate the determination of each Application at the end of “section” of these reasons, rather than treat the evidence of each Application and then deal with the Court’s determination of each of them until the end of the reasons overall. I note again that each of the parties agreed that all Applications be dealt with in the one set of reasons.
A final preliminary observation: because the Mother has now finally moved to the City AB, and certainly in the case of the older child B, it seems that much of the discord and all else has dissipated and the parties (Mr Solberg and the Mother) now share B’s time in an equal time, shared care arrangement. This might also mean that a number of the arguments canvassed in earlier submissions, set out below, are now somewhat moot.
Exhibits
At the various Hearings, the following documents were formally tendered:
| No. of Exhibit | Description of Exhibit | Party who Submitted Exhibit | Witness who Proved Exhibit | Notes |
| DCJ-1 | Letter from the New South Wales Department of Communities and Justice dated 22 November 2022 | Mother | N/A | At Contravention Hearing 24 March 2023 |
| DCJ-2 | Letter from the New South Wales Department of Communities and Justice dated 14 December 2022 | Second Applicant Father – Mr Ranwick | Mother | At Contravention Hearing 24 March 2023 |
| SR-1 | Timing Notice, Interim Family Violence Order, Application for a Family Violence Order and Transcript dated 8 March 2023 | Second Applicant Father – Mr Ranwick | Mother | At Contravention Hearing 24 March 2023 |
Outline of principle
Rice & Apslund
I note the following from four of many Full Court decisions that deal with the principle first articulated by the Full Court in Rice & Asplund.[2]
[2] Rice & Asplund (1979) FLC ¶90-725.
Firstly, and simply by way of reference only, I note Warnick J’s important decision in SPS & PLS, notably at [48], [49], [56], [58], [61], [65], [74], [78], [81], [82], [83] and [86].[3] Although the paragraphs to which I have referred should be taken to be primary points of reference, I will not and need not set them out from his Honour’s judgment, save for his Honour’s comments at [48] and [81], which are as follows (emphasis in original):[4]
[3] SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295. Warnick J was sitting as the Full Court.
[4] Warnick J’s comments in SPS & PLS were cited with approval by the Full Court (Bryant CJ, Finn & Cronin JJ) in Marsden v Winch (2010) 42 Fam LR 1 at [46] and [47].
[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.
[81] …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.
In 2008, the Full Court (Warnick, Boland & Murphy JJ) in Miller v Harrington discussed further the principle, and application of, Rice & Asplund.[5] Among other things, the Court there said, at [72] (emphasis added):
It may be, however, that neither the expressions “summary dismissal” or “striking out” is the best term to describe the procedure when, in a parenting case, the rule in Rice and Asplund is considered at a preliminary stage. This is because, as we seek to emphasise, at whatever stage the rule in Rice and Asplund is applied, the court is bound to take into account best interests considerations and also because specific requirements, including legislative requirements, apply.
[5] Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654.
Then at [80] and then at [82] - [84], the Full Court noted:
[80] In our view, that passage [at [81] in SPS & PLS] need not be taken as saying that the only way in which the rule in Rice and Asplund can be applied at a preliminary stage is on the basis that the case of the applicant for parenting orders is taken at its highest.
[82] … the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.
[83] This observation may be behind the approach that either the case of the applicant for parenting orders is, at a preliminary stage, taken at its highest, or the hearing embarked upon is an enquiry into all matters relating to the best interests of the child or children.
[84] On the other hand, there is authority to suggest that these are not the only legitimate procedures….
In Marsden v Winch, the Full Court observed, at [50]:[6]
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.
[6] Marsden v Winch (2010) 42 Fam LR 1. See also the Full Court’s pared down, two-step, process at [58]: (i) a requirement of there being established a prima facie case of a significant change in circumstances, and (ii) consideration of whether that change is sufficient to justify embarking on a hearing.
Then in 2014, a Full Court comprising Strickland, Murphy and Austin JJ delivered judgment in Poisat & Poisat.[7] At [43], their Honours commented on the rule in Rice & Asplund:
If applied on a preliminary basis, the issue is whether the circumstances as disclosed by the evidence reveal a change of such significance that the best interests of the child require a revisiting of earlier orders.
[7] Poisat & Poisat (2014) FLC 93-597.
More recently, in Carriel v Lendrum, a differently constituted Full Court (Finn, Strickland and Kent JJ) commented further, and at a little length, on the principle or rule in Rice & Asplund.[8] At [46], their Honours said (emphasis added):
… we are far from persuaded that the hurdles that have to be overcome to found a successful challenge on the basis of the weight afforded to the evidence have been scaled. It has consistently been held that where no error of fact or law is present, disagreement only on matters of weight cannot alone justify appellate interference….
[8] Carriel v Lendrum (2015) 53 Fam LR 157.
After noting, at [51], comments from Miller v Harrington (at [72]), and then, at [53], further comments from Poisat & Poisat (at [42]), at [56], the Full Court said:
This analysis leads us to the view that where the principle in Rice & Asplund is being considered, it will not be appropriate or necessary to discretely address many of the factors in section 60CC of the Act in determining where the best interests of the child might lie.
Then at [57], their Honours stated (emphasis added):
In a case where the principle in Rice arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child or children at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child to embark upon further litigation enquiring as to the child’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
Commenting on the decision then under appeal, the Court said, at [58] (emphasis added):
Thus, it is entirely understandable, and in our view, not erroneous, for his Honour to address the issue of “best interests” by reference to whether it is in the interests of the child for there to be the further litigation proposed by the mother. Indeed, we note that this was how the issue was framed in the mother’s outline of argument presented to his Honour at the commencement of the hearing. She said this (at paragraph 3):
The central question for consideration by the Court was encapsulated by Warnick J in the following terms (para 81, at page 310):
“… Though sometimes unstated, the underlying conclusion will or ought to 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.”
More recently still, in Walter & Walter, the Full Court (May, Ainslie-Wallace & Murphy JJ) again considered the so-called Rice & Asplund principle.[9] In the course of the disposition of that unsuccessful appeal, by reference to most of the cases to which I have already referred in these reasons, I note briefly the following.
[9] Walter & Walter [2016] FamCAFC 56.
First, at [51] – [57], Ainslie-Wallace J said (May J agreed with her Honour’s reasons as well as those of Murphy J):
[51] Where the question of whether a sufficient change in circumstances has occurred is to be determined as a matter preliminary to the hearing of the application, it is accepted that the applicant’s evidence should be taken at its highest.
[52] It was argued for the mother that his Honour erred in finding that she had failed to demonstrate a sufficient change in circumstances to justify re-opening the parenting proceedings.
[53] His Honour concluded at [100] that the facts did not establish “a new and vital change in the circumstances”, and found that it was “obvious” that Amber had been anxious for some time and that anxiety had from time to time manifested itself in her refusing to go to school. He went on to offer what he considered to be the reasons for this, including that she had recently commenced high school. He thus found at [111] that the mother’s evidence did not establish a material change of circumstances in the necessary sense.
[54] The bar to appellate intervention where the challenge is to a judge’s fact finding is set high. See Edwards v Noble (1971) 125 CLR 296.
[55] In order to succeed in challenging his Honour’s finding that there had been no change in circumstances, it is necessary to demonstrate that the finding was not open to his Honour on the evidence before him.
[56] Thus it was argued that, had his Honour indeed taken the mother’s evidence at its highest it was not open to him to find that there had been no material change in circumstances. It was further argued that both his Honour’s conclusion that the child had always been anxious, and that her present refusal to attend school was a manifestation of a pre-existing condition and was probably due to her attending a new school, were findings unsupported by the evidence.
[57] His Honour’s finding that the child’s present anxiety and refusal to attend school was unsupported by the evidence. However, it was a conclusion reasonably open to his Honour given the accepted increase in her refusing to attend school and anxiety generally with the beginning of a new school regime. It could not be said that the conclusion was not open to his Honour. His Honour’s findings clearly accept the parties’ position that Amber’s anxiety and school refusal had escalated. The issue for his Honour was whether these circumstances led to the conclusion that there had been a material change in circumstances. His Honour found that they did not. That was a determination open to him and I find no error in his conclusion. This challenge is not made out.
In his consideration of the challenge regarding the trial Court’s assessment of whether there had been a material change in circumstances, Murphy J said, at [83] – [86]:
[83] In any event, while the arguments in support of the contention are framed as challenges to “principles” relating to the rule, they are, in essence, challenges to the weight which his Honour attached to aspects of the evidence.
[84] In my view, the findings made by his Honour were entirely open to him on the evidence and it was entirely open to his Honour to include the matters to which his Honour made reference in reaching a determination that a material change in circumstances was not established.
[85] In that respect, it has been held recently that:
… Plainly a circumstance can only constitute a relevant 'change' if it is a circumstance which was outside or beyond the contemplation or consideration of the parties and the court at the time the original parenting orders were made. Put another way, if the current circumstances were within the contemplation of the parties and were considered by the court at the time the original parenting orders were made, there is no basis upon which they can be said to constitute a change which would justify the prospect of continuing litigation with respect to parenting arrangements, given the adverse effect which uncertainty and unpredictability with respect to parenting arrangements can be assumed to have upon the interests of the child concerned…[10]
[86] In my view his Honour made no error as asserted on behalf of the mother.
[10] CDW v LVE [2015] WASCA 247, at [88] per Martin CJ.
Then, after referring at a little length to Warnick J’s decision in SPS & PLS, at [110] – [116], Murphy J continued (internal citations omitted; emphasis added):
[110] The exercise of those discretions will depend, like all discretionary decisions, on a multiplicity of factors. However, the decisions will include a consideration of the nature and cogency of the evidence as to material change and the nature and extent of the orders sought to be changed. The decisions will also ordinarily involve a consideration of the notorious fact – accepted as such both by authority and by Mr North in his arguments – that continued litigation and the re-agitation of contested issues about children has the potential to cause significant harm to them.
[111] In some cases, those factors, and perhaps others, will persuade a court that further evidence is required before reaching a decision on the Rice & Asplund question. The obtaining of a Family Report in an appropriate case might be an example of such further evidence, although it once again needs to be pointed out that Family Reports do not decide cases; courts do.
[112] However, the court’s decision as to the evidence necessary to decide the application of “the rule in Rice & Asplund” as a preliminary matter also involves the exercise of discretion. The exercise of that discretion will also have as its central question whether it is “more powerfully in the child[ren’s] welfare” to permit the obtaining of the further evidence – and what might be involved for the children in doing so – than to determine the application of the rule as a preliminary matter without that evidence. That can be seen to have particular importance when the evidence sought is a Family Report or the interventions of other experts that involve the participation of the children.
[113] It should also be pointed out (as it was by this Court in Miller & Harrington), that the relevant discretions must now be exercised within the mandatory principles and other provisions contained within Division 12A of the Act. In that respect two of the mandatory principles which must be applied by a court by reference to s 69ZN of the Act bear quotation:
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
[114] In my view, contrary to the submissions made by Mr North, well settled authority is entirely consistent with his Honour having the power to apply “the rule in Rice & Asplund” as a preliminary matter “… even where the evidence demonstrates a material change since the previous order”.
[115] Secondly, again contrary to Mr North’s submissions, it is in my view not correct to characterise his Honour’s actions or decisions as a failure or refusal to exercise jurisdiction in proceedings for parenting orders properly invoked by the mother. The refusal by his Honour to contemplate the obtaining of a Family Report (or, perhaps, other evidence) so as to inform the rule at a preliminary stage was not a failure of judicial process but a discretionary decision performed within a mandatory statutory context and arrived at by reference to the children’s best interests for reasons which his Honour gave.
[116] It is not established that his Honour erred in law; that he failed to take account of relevant considerations; that he took account of irrelevant considerations or committed any other discretionary error. No error in the exercise of his Honour’s discretion is pleaded nor can any be seen in his Honour’s reasons.
And even more recently, in Swenson & Brantley (No.2) [2020] FamCAFC 205, the Full Court said (Aldridge J; Austin & Ainslie-Wallace JJ agreeing) said, at [19] (emphasis added):
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.
At [22], the Court said further:[11]
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.
[11] See further, the comments by the Full Court in Shan & Prasad (2020) 61 Fam LR 440.
Finally, by way of something of a summary of principle, I note the following from two other Full Court decisions.
First, at [73] in Banham v Banham, Strickland J said (emphasis added):[12]
[73] The first thing to note is that although there is no doubt that the rule in Rice & Asplund is a “manifestation of the best interests principle” (SPS & PLS (2008) 39 Fam LR 295 at [48]), his Honour’s task under the rule was to determine whether there had been a significant change in circumstances since the initial order was made such that it would be in the best interests of the children to reopen the litigation. That process involves the weighing of the significance or sufficiency of the changes against the potential detriment to the children caused by the litigation itself. That potential detriment extends to all that would be involved in reopening the litigation, including the exercise of obtaining a family report.
[12] Banham v Banham (2021) 64 Fam LR 361.
At [75] – [76], and [82], Strickland J noted that to order the preparation of a Family Report (which the Mother seeks to happen here in due course) at such an early stage of the litigation, namely at a hearing in relation to Rice & Asplund would defeat such a hearing of this kind, and would effectively “put the cart before the horse.”
Secondly, the Full Court in Mahneey & Dieter said, at [49] (emphasis added):[13]
… we should emphasise that the magnitude of the variation of the parenting orders sought to be achieved in the fresh proceedings, necessarily informs the nature of change of circumstances sufficient to justify that re-litigation. Here, the mother was seeking a complete reversal of the child’s living arrangements, rather than merely some minor tinkering or slender change to the New Zealand orders. Therefore, the nature of the change in circumstances needed to be of sufficient gravity to warrant the wholesale re-litigation of the child’s living arrangements. On no view did the mother’s claims come close to demonstrating a sufficient change. Taking her case at its highest, it had no reasonable likelihood of success.
[13] Mahneey & Dieter [2020] FamCAFC 88. Such matters were originally canvassed by Warnick J in SPS & PLS (2008) 217 FLR 164 especially at [48].
As Warnick J said in SPS & PLS, the rule in Rice & Asplund is a particular manifestation of the “best interests” principle to ensure that children are not endlessly embroiled in ongoing litigation.
Contravention
For the purposes of what follows, the statutory definition of “reasonable excuse” must be kept firmly in mind. Section 70NAE(1) provides as follows (emphasis added):
The circumstances in which a person may be taken to have had, for the purposes of this division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
Relevantly, s.70NAE(5) and (7) provide (emphasis added):
(5) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if;
a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
…
(7) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
a)the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and
b)the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
The detailed judgment of Warnick J (sitting as the Full Court) in Childers v Leslie considers at some length what constitutes a “reasonable excuse” for the purposes of s.70NAE of the Act. It is therefore necessary to consider relevant principle from that judgment.[14] From it I note the following.
[14] Childers v Leslie (2009) 217 FLR 124; (2009) 39 Fam LR 379.
In the course of Warnick J’s judgment in Childers v Leslie, his Honour made the following important observations, firstly at [22] – [24]:
[22] As earlier seen, s 70NAE(1) is to the effect that the circumstances described in the following subsections are not the only circumstances in which reasonable excuse may be found. While it is clear that a set of circumstances quite different in character to those set out in any of the subsections could constitute reasonable excuse, a much more difficult question is whether, if the circumstances seem to fit within the character of those set out in a subsection, that subsection describes the limits within which reasonable excuse may be found. For example, could a respondent who genuinely believed that contravention was necessary to protect a child’s health, but who had no reasonable grounds for that belief, nonetheless be found to have had a reasonable excuse for contravention or, might a person who contravened an order to protect a child’s health be found to have had a reasonable excuse for contravention, notwithstanding that the retention was for longer than was necessary to protect the child’s health.
[23] The first example might be addressed by regarding the term “reasonable excuse” in s 70NAE(1) as being an objective test, albeit one that might include “subjective” aspects. Thus, the term “reasonable excuse” in subsection (1) would match the term “on reasonable grounds” in subsection (5). If this approach was taken, the same result would be achieved whether subsection (5) was expressly relied upon or not. While this conclusion does not mean that subsection (5) must be applied whenever it can “fit” the circumstances, it certainly does not support an opposite conclusion.
[24] While subsection (5) describes circumstances in which a reasonable excuse will exist, within its term are qualifications such as “reasonable grounds”, “…necessary to protect the health…” and “…not longer than was necessary”, which if not met will exclude some “excuses”. I incline to the view that where the legislature has specifically installed qualifications on an excuse in a particular set of circumstances, it would not be open to make a finding of excuse where that limit had been exceeded, unless there were some additional circumstances that took the case out of the situation dealt with by the subsection. So, as to the second example given in the preceding paragraph, without such an additional circumstance, it would not be open to find reasonable excuse in respect of a contravention for a period that exceeded that which was necessary to protect a child’s health.
Then at [26], Warnick J said:
… In my view, the correct approach would have been to at least attempt to measure the mother’s excuse against the terms of s 70NAE(5) and to explain why the subsection did not apply, if that was held to be the case….
At [28], his Honour said:
… the learned Magistrate may well have fallen into error by applying too loose a test of “reasonableness”. The question is not simply whether, viewed from some ill-defined concept of fairness or reasonableness, the mother’s actions were excusable. The position with regard to the terms “reasonable grounds” and “reasonable excuse” in s 70NAE is, I think, similar to that of terms of like generality, for example, “any just cause” used elsewhere in the Act….
At [29] the Court said, in terms that have particular application in the current matter:
Here, the context in which “reasonable excuse” applied tellingly included the subsections of s 70NAE. It also included that the father was entitled to spend time with the child pursuant to a court order. Such an order places serious obligations on persons in the position of the mother in this case.
Finally, for current purposes, at [34], the Full Court quoted the following passage from the earlier Full Court judgment in Gaunt (emphasis added):
The relevant context also includes authoritive [sic] statements of the court about like cases, of which the following statements In the Marriage of Gaunt (1978) FLC 90-468 are a good example (at 77,398):
The essential question is this - can a party who does not agree with a court’s decision about access defy the order and then plead that in preventing access his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child? The question of the child’s welfare is, of course, the paramount consideration for the court in determining the access question in the first place. To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the court’s order or from the consequences of non-compliance would undermine the purpose and intentions of the Act.
… A party’s subjective view of the rights and wrongs of a decision cannot be relied on as “just cause or excuse” or “reasonable cause”…
For completeness, given that the Mother and Mr Ranwick both seek to have new Orders in relation to D that would revise, on either case, those made by the Court in June 2020, I note the statutory provisions under ss.70NAC (the definition of “contravened an Order”), and 70NBA (regarding the variation of a parenting Order). They are as follows:
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order—he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b) otherwise—he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
Section 70NBA is the cornerstone provision regarding any revision or variation to Orders following the filing and determination of a Contravention Application, thus:
(1) A court having jurisdiction under this Act may make an order varying a primary order if:
(a) proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and
(b) it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i) the court does not find that the person committed a contravention of the primary order; or
(ii) the court finds that the person committed a contravention of the primary order.
(2) If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:
(a) the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post‑separation parenting program or a part of such a program;
(b) there was no post‑separation parenting program that the person who contravened the primary order could attend;
(c) because of the behaviour of the person who contravened the primary order, it was not appropriate, in the court’s opinion, for the person to attend a post‑separation parenting program, or a part of such a program;
(d) the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children.
(3) This section does not limit the circumstances in which a court having jurisdiction under this Act may vary a primary order.
A. Application in a Proceeding filed 13th January 2022
Mother’s Orders Sought
The Mother filed an Application in a Proceeding on 13th January 2022; it was as follows:
1.That the matter is listed urgently.
2.That the orders of 30 June 2020 be hereby discharged.
3.That the children, [B] [Solberg], born [in] 2010, and [D] [Ranwick], born [in] 2017, live with the mother, [Ms Markwell].
4.That until further Order, the mother, [Ms Markwell], and the fathers, [Mr Solberg] have sole parental responsibility for their respective children, [B] [Solberg] and [D] [Ranwick].
5.That until further Order, [B] shall spend time with the father, [Mr Solberg], as follows;
a.For all of term one and three school holidays;
b.For half of term two and four school holidays, with the first half with the father and the second half with the mother in even numbered years, and vice versa in odd numbered years;
c.That the father may communicate with the child, [B], each Sunday and Wednesday night at 6:30PM, with the father to place a call to [B]'s mobile phone;
d.All other times as agreed in writing.
6.That until further Order, [D] shall spend time with the father, [Mr Ranwick], as follows;
a.For all of term one and three school holidays;
b.For half of term two and four school holidays, with the first half with the father and the second half with the mother in even numbered years, and vice versa in odd numbered years.
c.That the father may communicate with the child, [D], each Sunday and Wednesday night at 6:00PM, with the father to place a call to the mother’s mobile phone number … only;
d.All other times as agreed in writing.
7.That the parties shall notify the other respective parent of any illness or injury the child sustains whilst in their respective care.
8.That the parties are hereby restrained from denigrating the other party in the presence of either child, including exposing them to such denigration, and are restrained from allowing anyone else to do so.
9.That pursuant to section 11F Family Law Act 1975 the parties attend upon an expert witness for the purpose of an updated family report.
10.That for the purpose of order 9 above, [Ms Y] is hereby restrained from consulting the parties.
11.That pursuant to Part 9.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the matter be transferred to Division 2 of the Federal Circuit and Family Court of Australia.
It should be noted that, at the time of filing this Application in a Proceeding, the Mother continued to reside in country Victoria.
Fathers’ Orders Sought
The Fathers initially did not file a Response to this Application of the Mother. However, the following Orders sought were contained in the Case Summary Document filed on 3rd October 2022:[15]
1.That the Application in a Proceeding files 11 January 2022 be dismissed.
2.The Applicant pay the First and Second respondent’s costs of and incidental to the Application in a Proceeding and Application for Contravention.
[15] It should be observed that perhaps the principal reason for the delay in hearing the Application was because of the various periods of Covid-related “lockdowns” that took place during 2022, which resulted in the hearing dates being changed.
D’s Father, Mr Ranwick, later changed his position in relation to the Application and filed the following Response on 15th December 2022 (emphasis in original):
1.That pursuant to Rule 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the Court dispense with the requirement of Rule 5.08(3), being the limitation of 10 annexures, as amended by Rule 2.1(8) the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021, being 5 annexures.
2.That leave be granted to reopen the evidence in relation to the Applicant Mother’s Application in a Proceeding dated 11 January 2022.
3.That the Orders dated 30 June 2020, as they relate to the child, [D] [Ranwick], born [in] 2017, (“[D]”) only, be suspended.
4.That proceedings in relation to [D] be bifurcated from proceedings concerning the child, [B] [Solberg], born [in] 2010.
5.That [D] live with the Father, being [Mr Ranwick], born [in] 1978. (“the Father”).
6.That [D] spend time with the mother for half of the long summer holidays at the end of term four, commencing in the second half of the holiday period.
7.That within twenty-eight (28) days of the date of these orders, the Mother cause to be filed and served the following documents:
a. An Initiating Application;
b. Affidavit;
c. Notice of child abuse, family violence or risk; and
d. Parenting Questionnaire.
8.That within twenty-eight (28) days of compliance with Order Six, the Father cause to be filed and served the following documents:
a. Response to Initiating Application;
b. Consolidated Affidavit;
c. Notice of child abuse, family violence or risk; and
d. Parenting Questionnaire.
9. That the mother pay the father’s costs of and incidental to this application.
Notation
A. Given the content of the Father’s affidavit filed in these proceedings on 15 December 2022, he now contends there has been a change in circumstances significant enough to satisfy the threshold test set out in Rice v Asplund, and consents to enlivening the jurisdiction of Part VII of the Family Law Act 1975 (Cth) in relation to [D].
The Mother’s Oral Submissions in relation to Rice v Asplund
Summarised, the Mother’s oral submissions on 4th October 2022 in relation to the Rice v Asplund Application were as follows.
The Mother confirmed her Application related to her living situation and that for two years she had sought, unsuccessfully, to relocate to the City AB.[16] The Mother accepted there was no requirement in the Final Orders dated 30th June 2020 for her to relocate to the City AB, but submitted that she wishes for her two children to live substantially together, which (to speak in more general terms) is provided for in the Final Orders only if the Mother lives in the City AB. The Mother further submitted that the quality of the children’s relationship with each other and the Mother is not maintained under the current Final Orders.[17] The Mother submitted that it is implicit in the Final Orders that in order for the children to have a meaningful relationship with each of other, and with the Mother, the Mother is required to relocate to the City AB region.[18]
[16] Transcript pg. 3. All references to the Transcript from here will be denoted by ‘T’.
[17] T 4.
[18] T 5- 6.
The Mother further submitted that a substantial amount of time has passed since the Orders were made in June 2020. To state the obvious, which was put to the Mother at the time: (a) parenting Orders are made, invariably, on the basis that they will operate, and must operate, into the future, usually and decidedly well into the future; and (b) everyone, including the parties, knew that, obviously, everyone was getting older (including D), which was also factored into the future operation of the Orders.
The Mother noted that the Orders will be impractical when D commences school next year, because they require her to move from City AB to Town E at 10:00am on a school day. The Bench put to the Mother that this argument was effectively running the same or similar point as was run in one of the recent appeals. The Mother did not accept this proposition or statement.[19]
[19] T 7 – 8.
The Mother submitted that the involvement of DCJ with D in recent times was, itself, a material change in circumstances. Without saying how she knew, the Mother said that the Department was preparing a “s.248 notice” to provide to the Court relating to the risk of psychological harm to D in the care of her Father and his partner.[20]
[20] T 9.
The Mother stated, unfortunately somewhat confusingly, that the change in the household of one of the Fathers was not a sufficient change, nor was it an isolated event, such as to warrant re-opening the proceedings. However, the Mother then, rather contradictorily said that it was a material change in nature which goes to the “threshold issue”, without explaining her understanding of what this “threshold issue” comprised.[21]
[21] T 10.
Paraphrasing, the Mother submitted that the main issue went to the children continuing to be separated from each other, and from their Mother. She submitted that each of the Fathers has unilaterally made decisions and interpreted the Orders in their favour – as does the Mother. The Mother also noted that, since the final Orders were made, (a) D has become able to speak and (b) the last family report was now three years ago. The Mother submitted that the children express their disdain at being separated from each other.[22] Again by way of observation here: (i) the Final Orders of June 2020 were made fully cognisant of the age of D (and of course, B also) at the time, and obviously their aging into the future; and (b) the relative antiquity of the last family report is not, without more, a sufficient basis to obtain yet another report. The mere effluxion of time is not, of itself, sufficient to warrant putting everyone, especially the children, through more inquiry and interviews. Put in more colloquial terms: in parenting matters, there is no ongoing right to have regular family reports. Life generally “moves on”. Basic changes, such as people (including children) getting older, adults changing partners or spouses, and the like, are simply part and parcel of ordinary, everyday life. Ongoing litigation is anathema to the reasonable and orderly parenting of children, as the principles in case-law (noted above) confirm regarding the operation and application of Rice & Asplund.
[22] T 10 – 11.
It was again put to the Mother that the final Orders were made on the basis that they would continue to operate into the future. The Mother accepted this (but only ever up to a point), but submitted that her Honour made the final Orders in circumstances where the Fathers of each child confirmed that they would be capable of maintaining a relationship between the children, which they have not done.[23]
[23] T 11 – 12.
The Mother said that it would be difficult for the Court to find the threshold of Rice v Asplund was not made out in circumstances where the Court had not yet received the s.248 notice from the Department, and where there is no new Child Impact Report.[24] To state the obvious: submissions of this kind all assume, for example, that the anticipated material from DCJ will invariably favour the Mother, without qualification, and conversely, ignore that such material may (and does) contain material that is adverse to her position before the Court.
[24] T 13.
In reply to the Father’s legal representative, the Mother submitted that given the large polarities between the parties’ evidence, the Court should have some independent evidence before making a determination, such as from a family consultant or similar.[25] “Polarities” between parties in family law litigation is, simply as a statement of fact, de rigueur. That is what characterises adversarial litigation: parties are adversaries who have different, or polarised, positions. It is only a question of degree in each matter how polarised the parties are. Thus, “polarisation”, without more, is insufficient to warrant subjecting everyone but the children most particularly, to more interruption and interrogation in their lives. Moreover, high levels of “polarisation” between the parties has been one of the defining features of this litigation since its inception more than 8 years ago.
[25] T 19.
Oral Submissions on behalf of the Fathers in relation to Rice v Asplund
Summarised, the oral submissions on behalf of the Fathers on 4th October 2022 in relation to the Mother’s Rice v Asplund Application were as follows.
The Fathers’ legal representative submitted that the Fathers did not press the jurisdictional issue.[26]
[26] T 13.
It was submitted that the matters raised by the Mother did not, and do not, demonstrate a material change in circumstances that would give rise to a further parenting Application with respect to either or both D and B.[27]
[27] T 13.
In relation to the Mother’s living arrangements, the relocation issue and the unworkability of the Orders, it was submitted that it cannot be made out from the final Orders, and the judgment, that her Honour did not contemplate some of the difficulties with respect to the arrangements for the children moving forward. The different options contemplated were largely reliant on (a) the Mother’s choices with respect to her accommodation, and (b) the possibility of the Mother not living in City AB, both of which were previously agitated before the Court.[28]
[28] T 13 – 14.
It was also said that the final Orders contemplated relevant issues relating to schooling and the passage of time. Accordingly, there was no need to re-consider the Orders, which continued to operate to deal with, or cover, such matters.[29]
[29] T 14.
In relation to the change to Mr Solberg’s living arrangements, it was submitted that at the time of the trial, Mr Solberg did not then live on a full-time basis with his partner, from whom he has now separated. It was said that whether he did (or did not now) live with his partner was not a material change in circumstances.[30]
[30] T 15.
In relation to the DCJ reports, it was submitted that the Application to re-open the proceedings was made before the allegations against the Mother were reported to the Department. Further, the allegations that were made do not relate to the Father’s care of D in any event. Further still, it was contended that while the departmental investigation may be ongoing, the Father has not stopped (or indicated any plans to do so) facilitating the child’s time with the Mother in accordance with the Orders. It was submitted that the allegations made by Ms Solberg and his partner in relation to the Mother’s previous partner may be a question of contest in relation to the contravention, but it does not have any relevance in relation to a material change in circumstances, especially where the Mother and her partner are now separated.[31]
[31] T 15 – 17.
Regarding issues of parental responsibility being poorly managed, and the children wanting their wishes acknowledged, it was rather forcefully stated that there was no specific evidence before the Court about those matters. In relation to the allegation of the failure of the Fathers to facilitate the relationship between the children and their Mother, and as between the children themselves, it was quite simply said that these issues were contemplated by her Honour when the Final Orders were made, and not varied by the Full Court on appeal.
Consideration & disposition
Having regard to (a) the facts and circumstances, notably but not exclusively at the time of the filing of this Application, and at the time it was heard, (b) the submissions noted above, and (c) the principles regarding the application of Rice & Asplund (also noted above), in my view, there is no material change in circumstances that would warrant the children (and the parties) again to be subjected to scrutiny and evaluation, this having been done multiple times already in the course of the litigation.
The Applicant Mother’s contentions revolve around general assertions, such as the Fathers not facilitating the relationship between the children. Her other grounds relate to very standard, everyday matters, such as the children getting older (like the rest of us), and the length of time since the final Orders. In more detail, I note the following.
B
In circumstances where it is now acknowledged, and agreed, between Ms Markwell and Mr Solberg that B lives in a week-about arrangement, it is unnecessary to consider further the Mother’s January Application, effectively to re-open the parenting litigation in relation to B. Accordingly, in so far as that Application relates to B, it will be dismissed.
D
The Second Applicant Father amended his position in his Response to an Application in a Proceeding on 15th December 2022, but included a notation sought that the Father now contends there is a change in circumstances significant enough to satisfy the threshold test set out in Rice v Asplund. However, given the gravity of the impact of this litigation on D, doubtless too on the parents, I am not satisfied that there has been a significant enough change in circumstances to warrant the matter being re-opened. This precisely because the Final Orders plainly contemplated the possibility, and perhaps the likelihood, that the Mother may move back to City AB. The Orders of June 2020 presumed that such a return to City AB (or near surrounds) would be relatively soon – not close to three years after the Orders were pronounced. Having regard to the various comments and statements of principle by multiple Full Court decisions noted above, it would be completely onerous for D (and her parents) to be embroiled again in ongoing litigation, including obtaining further Reports.
On the Mother’s own case, in its various iterations and highly repetitive submissions, Ms Markwell’s case boils down to the quite straight-forward, following propositions:
(a)The Mother recently moved back to the City AB region, firstly to Town AD, just outside its borders, and then to emergency (and thereby, non-permanent) accommodation in a suburb of City AB. That accommodation, according to the occupancy agreement, expires on 8th June 2023;
(b)It has been approximately 2½ or so years since the Final Orders of June 2020;
(c)There needs to be a further Report;
(d)The breakdown in the relationship between Mr Solberg and his partner;
(e)The sibling relationship between B and D needs to be re-considered; and
(f)The [unspecified] needs of the children are now not being met.
The Mother’s “living situation” was addressed by her in various ways, including that it was a “relocation” which was, somehow, forced upon her, by the Orders of June 2020. The Orders of June 2020 do not “require” any “relocation” by the Mother. They simply speak conditionally that “if the Mother” lives or returns to the City AB region, or within a specified distance from City AB, then certain things may or will flow from that circumstance regarding parenting arrangements. In my view, it is plain that the Orders of June 2020 contemplated that the return to, or move of the Mother to, the City AB region was not, so to speak, “at large”, meaning that at any time in the future (e.g. 2, 3, 5 or 10 years) the Mother could move and the Orders would then, automatically provide an unexamined change in D’s living and schooling circumstances. In my view, the Orders of June 2020 must be read as providing that if the Mother returned to the general City AB region “within a reasonable period of time, e.g. 6 months,” then certain things would likely follow. It is inconceivable that the Final Orders would provide for a completely open-ended operation of them for any return by the Mother, at any time in the future.
In my view, it is also plain that the Orders of June 2020 appreciated, both historically and otherwise, and were made fully cognisant of the following:
(a)the needs of the children, having regard to their different ages;
(b)the importance of the sibling relationship between the sisters;
(c)the different living situations of the families of each Father (one in City AB, the other in Town E in country New South Wales, Town E being approximately 100 or so kilometres from City AB, a drive of approximately several hours);
(d)the living situation of the Mother at a significant distance from City AB, and what might (or would) happen in terms of the parenting arrangements in the event that she was to return to live in much closer proximity to the Father(s).
For these reasons, the proceedings cannot, indeed should not, be re-opened. Among other things, to do so would be immensely detrimental to the best interests of D. Further, and no less significantly, the “threshold” first articulated by the Full Court in Rice & Asplund, and as described in multiple ways by multiple Full Court authorities since, is not really even closely reached on the facts set out here, taking the Mother’s case at its highest.
In addition to the failure of the Mother’s evidence to get remotely close to the relevant test of material change in circumstances, and which were supposedly not contemplated by the Final Orders of June 2020 (which they were), I also accept Mr Ranwick’s submission that the Mother’s Application of 13th January 2022 also falls foul of the Rules of Court because, apart from the outstanding Contravention Application, there is no relevant substantive, primary Application on foot.
Rule 5.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides (emphasis added): “A person may apply for an interlocutory order only if the order sought relates to a current proceeding.” The exceptions referred to in r.5.02(2) do not apply here.[32] Put another way, a Contravention Application does not come within the limited exceptions to the Rule.
[32] Generally, see Doughty & Fairhall [2022] FedCFamC1A 15.
In short, I accept the Fathers’ submissions regarding both the Rice & Asplund issue, as well as the failure by the Mother to comply with the terms of the Rules of Court in relation to her Application in a Proceeding, filed 13th January 2022.
Again to state the obvious: matters such as these raised by the Mother are, again, simply every-day, “common, garden-variety” issues. To repeat comments noted above from two Full Court decisions, in Mahneey & Dieter (“Dieter”) said, at [49] (emphasis added):[33]
… we should emphasise that the magnitude of the variation of the parenting orders sought to be achieved in the fresh proceedings, necessarily informs the nature of change of circumstances sufficient to justify that re-litigation. Here, the mother was seeking a complete reversal of the child’s living arrangements, rather than merely some minor tinkering or slender change to the New Zealand orders. Therefore, the nature of the change in circumstances needed to be of sufficient gravity to warrant the wholesale re-litigation of the child’s living arrangements. On no view did the mother’s claims come close to demonstrating a sufficient change. Taking her case at its highest, it had no reasonable likelihood of success.
[33] Mahneey & Dieter [2020] FamCAFC 88. Such matters were originally canvassed by Warnick J in SPS & PLS (2008) 217 FLR 164 especially at [48].
As Warnick J said in SPS & PLS, the rule in Rice & Asplund is a particular manifestation of the “best interests” principle to ensure that children are not endlessly embroiled in ongoing litigation.
Having regard to the nature and detail promoted by the Mother here, taken at its highest, and having regard to the principles and comments by the Full Court set out above, especially in Dieter, I adopt the comments of that Full Court here, namely: “On no view did the mother’s claims come close to demonstrating a sufficient change. Taking her case at its highest, it had no reasonable likelihood of success.”
For these reasons, the Mother’s Application, filed 13th January 2022, must be dismissed.
B. Contravention Application filed 22nd July 2022
The Contravention Application filed by the Mother on 22nd July 2022 alleged the following contraventions (emphasis added):
Contravention 1
Orders 2, 11, l 2(b)(iii), I 3, and I 9 of the Final Orders made on 30 June 2020.
30/05/2022 – time unknown – [AE School]
The first respondent without reasonable excuse, with knowledge that the applicant did not consent, enrolled their daughter, [D] [Ranwick], into school.
Contravention 2
Order 2 of the Final Orders made on 30 June 2020.
24/05/2022 – time unknown – [AF School City AB]
The second respondent without reasonable excuse, with knowledge that the applicant did not consent enrolled their daughter, [B] [Solberg], into school.
Contravention 3
Order 12(b)(iii) of the Final Orders made on 30 June 2020
9 July 2022 - 10:00am – [Town F] Service Centre on the [G Highway] at [Town F]
The first respondent without reasonable excuse, failed to facilitate D spending time with the applicant.
Contravention 4
Order 13 of the Final Orders made on 30 June 2020
9 July 2022 - 10:00am - [Town F] Service Centre on the [G Highway at Town F]
The first respondent without reasonable excuse, failed to make the child, [D] [Ranwick], available at [Town F] Service Centre on the [G Highway at Town F] for changeover.
Contravention 5
Order 19 of the Final Orders made on 30 June 2020
9 July 2022 – 10:00am – [City AB]
The first respondent without reasonable excuse, failed to take all reasonable steps to ensure that the child, [D] [Ranwick], spends time with the mother and her sibling, [B] [Solberg].
Evidence and Submissions in relation to Prima Facie Case of the Contraventions
The Father’s lawyer confirmed that Contraventions 1, 2 and 5 were not admitted; in the alternative, the Father pleaded that there was a “reasonable excuse” regarding each of the allegations. Contraventions 3 and 4 were admitted (or not denied); however, again the Father relied upon there being a reasonable excuse.[34]
[34] T 22.
Mother’s Evidence in relation to Prima Facie Case
Summarised, the Mother’s evidence at the hearing on 5th October 2022 in relation to her July 22nd Contravention Application was as follows.
Regarding the first contravention concerning enrolling D in school, the Mother confirmed that she had not proposed a school for D to attend in the contravention proceedings. She also confirmed that, other than the Order in relation to equal shared parental responsibility, there was no Order restraining Mr Ranwick from enrolling D into a school. One might have reasonably thought that these responses would have, or should have, immediately led the Mother to withdraw this contravention. In my view, plainly it should have been withdrawn immediately in the light of the Mother’s evidence.
In relation to the second contravention concerning enrolling B in school, the Mother similarly confirmed she had not proposed a school for B to attend. The Mother agreed that it was the case that she would not have consented to enrolling the children in any school because her Rice v Asplund Application was [then still] on foot. The Mother stated that she had no certainty that the outcome of her Application would be known by the time the children were set to commence school next year.[35]
[35] T 27 – 29.
In relation to the third contravention, which was conceded, the Mother confirmed that [at this time] she currently lives in Town E and therefore Order 14 of the final Orders applied at that time. The Mother agreed that since 9th July, the time of the alleged contravention, Mr Ranwick has facilitated time between the Mother and D.[36]
[36] T 30.
The Mother was not asked any questions in relation to contravention 4, presumably relying upon the Affidavit evidence alone.
In relation to contravention 5, the Mother confirmed that since 9th July, she and Mr Ranwick had had conversations in relation to makeup time between the Mother and D.[37]
[37] T 30.
Submissions on behalf of the Father in relation to Prima Facie Case
Summarised, the oral submissions on behalf of the Father on 5th October 2022 in relation to the Contravention Application were as follows.
The Fathers’ lawyer submitted the Mother had failed to satisfy the requirements prescribed in s.70NAC of the Act with respect to an intentional failure to comply in relation to some Orders, or that there had been a lack of reasonable attempt to comply with the Orders otherwise.[38]
[38] T 31.
In relation to the first contravention, it was submitted that D was enrolled in school, but she is not yet attending Kindergarten with respect to that enrolment. It was said that the Mother had, at no stage, proposed an alternative arrangement for D to attend kindergarten next year despite Mr Ranwick seeking the Mother’s consent to his proposal. It was submitted that it could not be said that Mr Ranwick had made no reasonable attempt to comply with the Order (and/or its requirements) regarding equal shared parental responsibility.[39]
[39] T 32.
In relation to the second contravention, it was submitted that Order 4 of the final Orders granted Mr Solberg authority to enrol B into school if the parties cannot agree. It was submitted that Mr Solberg also sought to communicate with the Mother regarding options for school; the Mother again confirmed that she would not agree to any of the Father’s proposals. It was submitted that the Mother failed to make the case that Mr Solberg intentionally failed to comply with the Order in that the Order is potentially unclear as to what the decision-making mechanism was. It was also submitted that it cannot be said that no reasonable attempt to comply with the Order was made.[40]
[40] T 32 – 33.
Contraventions 3 and 4 were not canvassed in detail at this stage because they were admitted. In short, it was submitted that the “reasonable excuse” arose from the reports that were made at that time to DCJ, based on a disclosure made in the Father’s household. It was submitted that the Father re-commenced time immediately once he learnt that the person against whom the allegation was made was no longer part of the Mother’s household.[41]
[41] T 34.
In relation to contravention 5, it was submitted that the Mother conceded that there was communication between the parties regarding make-up time following the non-facilitation of time. It was submitted that the wording “the parties shall take reasonable steps to ensure the children spend time with their mother together…” indicate that the Father attempted to arrange make-up time, by which he ameliorated the issue that occurred on 9th July. It was submitted that Mr Ranwick had made a reasonable attempt to comply with the Order. [42]
[42] T 33 – 34.
In reply to the Mother’s submissions, it was submitted on behalf of the Fathers that the Mother’s oral application to cross-examine the Fathers was opposed because, in contravention proceedings, it is impermissible to cross-examine the Respondents to perfect, or otherwise to repair, relevant defects in the contraventions alleged in the Application.[43] Put another way, absent a formal Application and evidence to support it, one can only run her or his case precisely as pleaded.
[43] T 41.
Submissions by the Mother in relation to Prima Facie Case
The Mother submitted that the Fathers intentionally failed to comply with the Orders, and/or to make a reasonable attempt to comply with them.
The Mother submitted in relation to contraventions 1 and 2 that, as the school year approached, the Mother would have engaged in discussions concerning schooling. In relation to the error in contravention 1, where she referred to Order 2 instead of Order 12, the Mother stated that the Application was completed by a former solicitor. The Mother submitted that the Fathers did not make a genuine effort to come to a joint decision in relation to schooling. She conceded that she did not provide any schooling alternatives because she was waiting for the result of her Rice v Asplund Application. The Mother submitted she was not consulted on the school fees by either Father.
She further submitted that Order 4 is discretely [and only] about primary school, and does not relate to high school.[44] The basis or foundation of this submissions was unclear, both as a matter of factual evidence (or lack thereof), and as a matter of construction of the relevant Orders. Indeed, there was no such distinction in the Orders between consultation regarding primary school and secondary school.
[44] T 35 – 39.
In relation to contravention 5, the Mother’s only submission was that the final Orders do not require the Fathers to ensure that the children spend time together and that this contravention actually goes to the workability of the Orders.[45]
[45] T 41.
At this stage in the proceedings, the Mother became very unwell and the rest of the hearing of the Contravention Application was adjourned. Oral reasons were delivered in relation to prima facie case, which now form a part of this judgment.
In accordance with the delivered reasons, I pronounced Orders on 5th October 2022 that a prima facie case was not established in relations to Contraventions 1 and 2. I found that a prime facie case had been established in relation to Contraventions 3, 4 and 5.
The Mother’s Affidavit filed 23 November 2022
Following the Mother’s recovery, on the delayed third day of the hearing, for more abundant caution it was confirmed that the matters formally before the Court related solely to Contraventions 3, 4 and 5, pertaining exclusively to the Father (Mr Ranwick) having withheld D on 9th July 2022.
Nevertheless, at the outset, Mr Ranwick’s lawyer raised the issue of the Mother’s lengthy Affidavit filed only the day prior to this resumed hearing. While the Mother attempted to argue that the contents of her Affidavit were “critical”, she was advised, as a matter of procedural fairness, that it was inappropriate to be filing material at this very late stage, particularly in circumstances where the matter was part-heard. The Mother was further informed that the filing so late of material sought to be relied upon would require an Application to seek leave from the Court, and subsequently an opportunity for the Fathers to respond, thereby causing further delay to the proceedings. This was also in circumstances where the Mother, by virtue of the very significant length of the litigation over many years, including the multiple appeals from decisions of Judge Hughes when she had the protracted carriage of the litigation, the Mother can and should properly be described as a highly experienced litigant, accepting that she remained a self-represented litigant and had been for a little time, certainly since the departure of her last set of lawyers.
It was also made clear to the Mother the risk of continuing to run her matter in this manner would likely expose her to a potential costs Order.[46]
[46] The Transcript references from the resumed third day of the hearing will be designated “TB”. TB 4.
The Mother then proceeded to seek that the parties be provided with a copy of the DCJ material that had been provided to the Court. It was brought to the Mother’s attention that, given the material advised that the allegations involving D had not been substantiated and therefore there was no relevant risk from Mr Ranwick, and the Mother appeared to have her own line of communication with the Department which apparently provided her with the same information, it was unlikely anything further could be gained in terms of this material being of any assistance to the parties, other than to delay the proceedings further.[47]
[47] TB 5.
Although the circumstances and evidence would, in my view, warrant an indemnity costs Order, on balance, having regard to the conduct of the Mother noted above, and further that she is currently in emergency housing, I will simply Order that, within 60 days, the Mother pay the Father’s costs, fixed in the sum of $6000.00.
In my view, there is also sufficient evidence to warrant the Mother entering a bond. However, I will simply make a Notation to the effect that in the event that any contravention is filed by the Mother within the next 2 years that is similar to the circumstances of those dealt with by the Court on these occasions set out in these reasons, it is likely, subject to evidence and submissions, that a strict or significant bond would be required of the Mother. To put it as bluntly and clearly as possible: the Mother has had so many chances to make the June 2020 Orders work, but has found a myriad of ways to subvert them. Such conduct cannot be allowed to continue.
S.70NBA & Variation of Final Orders
In relation to any variation to the June 2020 Orders, I note the following.
First, the principal and most obvious problem is not the Final Orders per se. Rather, it is the appalling co-parenting relationship that has unfolded, or rather the complete lack of it, between the parties that is the issue.
Secondly, if any variation was to be based on the lack of co-parenting capacity by the parents, a “no contact” Order would be completely proper and apposite in the circumstances. However, in any parenting Order, the best interests of D must remain the paramount consideration under s.60CA. For that primary reason, it is not apposite for there to be a “no contact” Order made in this case. That said, the fundamentally flawed relationship between the parents requires that the Final Orders be changed so that one parent have sole parental responsibility.
In this instance, in my view, it is not disputed that D has a good and close relationship with both parents.
Secondly, among other relevant considerations under s.60CC(3), are the following undisputed facts:
(i)For the purposes of s.60CC(3)(b) and (d), D has two siblings: BD who obviously (as a quite young child of perhaps 18 months of age) lives exclusively with the Father and his partner; and her older sister, B, who now lives in a week-about arrangement between the Mother and Mr Solberg. Thus, for example, in living with the Father, D would be with BD all of the time except for the limited time she is with the Mother, whereas if D lived primarily with the Mother, she would only spend time with B when there was a coincidence and overlap between the two sisters with their Mother;
(ii)The Father and his partner live in permanent accommodation in Town E, whereas the Mother lives in emergency accommodation in City AB, with a lease that expires in early June 2023. The Mother contends, but with no evidence at all (other than her own contentions), that the Organisation U will assist her with more permanent accommodation when the current lease expires;
(iii)The Father works full-time, while the Mother, on her own evidence, (a) works casually with her current job (done remotely; its “end-date” was not disclosed nor was her weekly income), and (b) hopes/intends to work full-time once she finds more permanent accommodation. What the Mother’s full-time employment might look like, and in what area and with what income, was never outlined. These two areas of employment and accommodation are certainly and clearly issues of speculation and concern for the Mother. This is not a criticism; rather it simply records the facts as currently known. D needs stability and certainty on every front in her life. I do not doubt the Mother’s intention to secure permanent, full-time employment, and likewise permanent accommodation. The reality is, however, that since the June 2020 Orders were made, the Mother consistently protested her plan to return to the City AB region and to secure permanent accommodation. Regrettably for all concerned but most especially both of her daughters, the Mother lived in a number of different localities, and ultimately lived in country Victoria for a significant period of time. She only returned to the City AB region in late 2022: first to Town AD, outside City AB; then to emergency accommodation in City AB. Put another way: the Mother’s long-professed intention to return to the City AB region took a very significant time to be realised;
(iv)Under s.60CC(3)(e), the matter of “geography” between the parties remains a consideration. While not as far as country Victoria as has been the case for some time until recently, nonetheless the distance between Town E and City AB, with the attendant travel times and cost of fuel, remains another not insignificant factor;
(v)The unusual circumstances that are outlined above that led to the Mother obtaining, on very selective and in part misleading evidence, an interim family violence Order against the Father’s partner (and naming D on that Order) is obviously a matter of note and proper consideration. This is to say that the Order is of note, as is the quite selective evidence used by the Mother to obtain it;
(vi)Finally, the Mother’s actions in unilaterally enrolling D in school, not placing the Father’s name on the enrolment form(s), and not only preventing D spending any time with the Father for a number of months together with not responding at all to correspondence from the Father’s lawyers (and from the Father himself), all speak very poorly of her exercise of parenting responsibilities under s.60CC(3)(c), (ca), (f), and (i).
In the light of these matters, and in the light of the Court’s findings in relation to the contraventions, in my view, it is in D’s best interests to return to the primary care of her Father in Town E. The Court is told that her previous enrolment remains in place at school. She will essentially return to her original cohort of friends at school, and to teachers she generally knows from the previous year. This is all simply to say that D will be returning to very familiar living, school and friendship situations.
To minimise further disruption to D, she shall finish Term 2 in City AB at her current school and commence school in Town E at the commencement of Term 3. To put it beyond any doubt, Term 2 finishes in the City AB on 30th June. D is to be returned to her Father (with changeover at the Town F Service Centre) at 4pm on Sunday 2nd July.
To ensure that this changeover and change in residence occurs without further challenge or disruption, a Recovery Order will lay in the Registry of the Court so that, in the unfortunate event that D is not returned to the Father’s primary care as stipulated under the varied Orders, that Recovery Order will immediately issue to ensure that D is returned to the Father.
Because of the Court’s Order for D to return to live primarily with the Father, if the current equal shared parental responsibility Order remained in place, it would effectively be the Court rewarding the poor parental behaviour of the Mother over a significant period of time. In saying this, it should not be taken that the Court completely endorses every aspect of the Father’s conduct. However, the evidence supports findings that (a) the Father has properly and reasonably attempted to negotiate with the Mother regarding both “time with” and in relation to school for D, but to no avail, and (b) he has generally attempted to promote D’s relationship with the Mother, while the reverse has not been a feature of the Mother promoting D’s relationship with the Father.
In short, the constant poor co-parenting relationship makes plain that the equal shared parental responsibility Order cannot stand. It will be replaced with an Order for the Father to have sole parental responsibility in relation to D. The Father is to keep the Mother informed of any decisions relating to any major, long-term issues. This is to occur via the Talking Parents App.
Finally, with D returning to the Father’s primary care, it remains only to consider what “spend time with” arrangements should be made regarding D and her Mother. As earlier indicated, tempting as it might be to end the parenting civil war of attrition, it is not in D’s best interests for her time with the Mother to cease. Nonetheless, there needs to be some restraint by the Court in making Orders here, precisely because of the discord and all else outlined at length both by Judge Hughes in 2020 (and the multiple earlier judgments by her Honour, and the various judgments of the Full Court), and here by me.
The following provides, in my view, a regime by which the good relationship will be maintained between D and her Mother, but also in a way that will ensure (as far as Orders can provide) the safest means for compliance with the Court’s Orders in every relevant respect. Thus, the Orders which the Court considers to be in D’s best interests regarding “time with” her Mother is as follows:
(a)For the next six months from the date of D going into her Father’s primary care, D shall spend one weekend per month with her Mother, from Friday afternoon (changeover at 5pm on Friday at the Town F Service Centre) until 5pm on Sunday afternoon (changeover at 5pm at the Town F Service Centre);
(b)Absent any reports by the Mother to Care and Protection within the next six months, and absent any adverse Application by the Father against the Mother regarding parenting also within the next six months, D’s time with her Mother shall increase to every second weekend as per the same changeover times and location in the previous Order;
(c)Once the Mother’s time with D moves to each alternate weekend, the Final Orders from 30 June 2020 regarding holiday time will continue to apply.
Respectfully, if ever there was a case that showed that actions have consequences, this is a prime example. Every opportunity has been given to the Mother to make the June 2020 Orders work, but to no avail. For too long, in my view, the Mother has viewed and twisted the Orders with a degree of impunity to suit herself and, as far as possible, to impede and interfere with the Father’s time with D. The Orders now made are not only in D’s best interests, they are also designed to minimise the potential for disruption in the co-parenting relationship between the parents. This too is in D’s best interests.[112]
[112] Because of the blunt assessments of the Mother made in the course of these reasons based on the evidence and her conduct, to save the parties some extra cost in the hopefully unlikely event of any other Applications, I propose to recuse myself (noting that I inherited this matter from Judge Hughes who had the primary carriage of it for many years) and that another Judge in this Registry, or from elsewhere, shall have the conduct of such matters into the future. Again, one hopes that the litigation will end for the sake of the children, and their parents.
I certify that the preceding two hundred and fifty-four (254) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 15 May 2023
ANNEXURE A
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA FILE NO: (P)CAC1533/2014 BETWEEN:
MS MARKWELL (Applicant)AND:
MR SOLBERG (First Respondent)AND: MR RANWICK (Second Respondent)
AND: Independent Children’s Lawyer
BEFORE: JUDGE HUGHES
DATE: 30 June 2020
MADE AT: CITY AB
UPON APPLICATION MADE TO THE COURT.
THE COURT ORDERS THAT:
(2)All previous parenting orders in relation to the children B born in 2010 (“B”) and D born in 2017 (“D”) are discharged from 3 July 2020.
(3)The applicant mother, Ms Markwell, and the first respondent father, Mr Solberg, shall have equal shared parental responsibility for B.
(4)Until 3 July 2020, B’s living arrangements shall be in accordance with the orders of 1 March 2019.
(5)From the commencement of the third school term in 2020, B shall attend a school in City AB to be agreed between the mother and Mr Solberg by 3 July 2020 or, in default of agreement, to be chosen by Mr Solberg.
(6)Unless otherwise agreed between the parties in writing, B shall spend the whole of the school holiday period at the end of term 2 in 2020 with her father, returning to her mother at 5pm on Saturday 18 July 2020, subject to order (6) below.
(7)If both parents are living in the City AB district, from 19 July 2020 B shall live for equal time with each parent, which, unless otherwise agreed, shall be on a week about basis during school terms, with handover at 5pm each Sunday.
(8)If the mother is not living in the City AB district by 18 July 2020, B shall live with her father from that date and spend time with her mother as agreed between the parents until the mother relocates to the City AB district at which time the provisions in order (6) above will apply.
(9)With the exception of the term 2 school holidays (which are the subject of order 5 above), B shall spend half of each school holiday period with each parent as agreed, or failing agreement, the first half with her mother and the second half with her father in odd numbered years and vice versa in even numbered years.
(10)During the long summer holidays each year, unless otherwise agreed, B shall spend the first half with her mother and the second half with her father in odd numbered years and vice versa in even numbered years.
(11)Handover of B shall occur as agreed between the parties to share as evenly as possible any travel required.
(12)The applicant mother, Ms Markwell, and the second respondent father, Mr Ranwick, shall have equal shared parental responsibility for D.
(13)Provided the mother lives within 200 km of Town E, D shall live with her mother and spend time with her father as follows:
(a)until 3 July 2020, in accordance with the orders of 1 March 2019, as modified by agreement between the parties;
(b)from 3 July 2020:
(i)during school terms, every second week from 10am Wednesday to 4pm Sunday to coincide with the time B is with her father;
(ii)for half of the 2020 mid-year school holidays on dates to be agreed or, failing agreement, from 10am on Friday 10 July to 5pm on Saturday 18 July;
(iii)thereafter, for half of each school holiday period at the end of terms 1, 2 and 3 each year, to coincide with the time B is with her father;
(iv)until D turns six, for half of the long summer holidays at the end of term 4 each year, on dates to be agreed or, failing agreement, on a week about basis starting with the first week with the mother in odd numbered years and the first week with the father in even numbered years;
(v)upon D turning six, for half of the long summer holidays at the end of term four each year on dates to be agreed or, failing agreement, the first half with her mother and the second half with her father in odd numbered years and vice versa in even numbered years and to coincide with the time B is with her father.
(14)Handover of D shall occur as agreed between the parties or, failing agreement, at the Town F Service Centre on the G Highway, at Town F.
(15)In the event the mother lives further than 200 km from Town E, D shall live with her father, spend time with her mother during school term as agreed in writing between her parents and spend time during school holidays in accordance with these orders.
(16)Each parent shall facilitate their child communicating with the other parent at any reasonable time at the request of the child.
(17)Each parent may communicate with their child when the child is in the care of the other parent at times to be agreed or, failing agreement, each Tuesday and Saturday between 6pm and 6.30pm. For the purpose of this order, the parent with care of the child shall ensure the child is available to receive the other parent’s call. If the child is unavailable for any reason, the parent with the care of the child shall facilitate the child returning the other parent’s call as soon as practical and, in any event, within 24 hours.
(18)Unless otherwise agreed, the children shall spend Mother’s Day with their mother and Father’s Day with their father each year, regardless of where they would otherwise be in accordance with these orders, at times to be agreed or, failing agreement, from 9am to 5pm.
(19)Unless otherwise agreed, each child shall spend time with their parents and sibling on their own birthday, their sibling’s birthday and the relevant parent’s birthday, at times to be agreed or, failing agreement, from 3pm to 5.30pm if they would not otherwise see them on those days.
(20)The parties shall take reasonable steps to ensure that the children spend time with their mother together, noting however that the arrangements for the children during the long summer holidays may be different until D is aged six.
(21)The parents of each child shall download a parenting communications app to be agreed or, failing agreement, the Talking Parents app, to be used as the primary form of communication between them.
(22)Each parent may communicate with the other by telephone or text message in urgent circumstances.
(23)The parents of each child shall, within seven days, advise the other of their residential address, email address and mobile phone number and advise of any changes to those details within 48 hours of the change.
(24)Each parent is free to be fully involved in the preschool, school and extra-curricular life of the child, to receive copies of school reports, newsletters and the like and to attend all events and functions to which parents are invited.
(25)Each parent shall promptly advise the other of any serious illness or injury suffered by the child and provide the name and contact details of any treating medical practitioner and, to any extent necessary, authorise the treating medical practitioners to provide full information directly to the other parent.
(26)Each parent is hereby restrained from:
(a)denigrating the other parent(s) or any member of their family to or in the presence of the children or allowing anyone else to do so; and
(b)discussing these proceedings or the issues involved in them with or in the presence or hearing of the children, except to explain the parenting arrangements.
(27)Whenever the children are in the care of their respective fathers, Mr Ranwick may come into contact with B and bring D into contact with Mr Solberg and Mr Solberg may come into contact with D and bring B into contact with Mr Ranwick.
(28)The mother shall take all reasonable steps to engage with a psychiatrist and a clinical psychologist experienced in trauma-focused work (“the therapists”) for the purpose of mental health treatment and therapy. For the purpose of this order:
(a)The mother shall engage the therapists within four months;
(b)The mother shall advise each other party of the name of the therapists within seven days of engaging them;
(c)The independent children’s lawyer shall provide to each of the therapists:
(i)a copy of these orders and reasons for judgment;
(ii)a copy of the report of Dr H dated 4 October 2019; and
(iii)if sought by the therapists, a copy of any medical records pertaining to the mother held by the Court.
(d)The mother may provide a copy of these orders and reasons for decision to her general medical practitioner.
(29)The appointment of the Independent Children’s Lawyer is discharged six months from today.
(30)The contravention applications filed by Mr Ranwick on 30 October 2018 and 5 April 2019 are adjourned to 20 July 2020 at 10am for mention in the duty list.
(31)The applications in a case filed by the mother on 23 April 2020, 9 June 2020 and 10 June 2020 remain listed on 20 July 2020.
(32)Otherwise, all extant applications are hereby dismissed.
ANNEXURE B
Date Event 20 December 2022 Notations that the NSW DoCJ provided the Court with information pursuant to s248 of the Children and Young Persons Act. On 15 December the Mother sought to file a new AIP and the Father filed a new response to the AIP filed by the Mother on 11 January 2022. Notation that the matter is already reserved in relation to the AIP filed 11 January 2022 and the Contravention Application filed 22 July 2022 so liberty will be extended to both parties to file supplementary submissions in relation to the DoCJ material and what, if any, changes should be made to the Final Orders dated 30 June 2020 pursuant to section 70NBA. The parties were Ordered to notify the Court of school holiday arrangements and the Mother was to provide a copy of her lease agreement to the Court and practitioners. 15 December 2022 Mr Ranwick filed a response to the AIP filed 11 January 2022 by Ms Markwell (had not previously actually filed a response). This sought that leave be granted to re-open evidence in relation to AIP, orders dated 30 June 2020 in relation to D be suspended. Proceedings in relation to D be bifurcated from those relating to B. D live with Father and spend time with mother for half long holidays. Notation that the Father now contends there has been a change in circumstances significant enough to satisfy Rice v Asplund.
Ms Markwell attempted to file an AIP which she requires leave to do so.24 November 2022 (Judge Neville) Interim Hearing in relation to Contravention Application filed 22 July 2022 (part-heard). Notations that the court received material from DCJ on 23 November 2022 which appears to be the report made by the Father on 6 July 2022 in relation to possible risk of abuse of D by the Mother’s then partner. The material was released. Notation that should the matter proceed to the question of penalty this will be done on the papers in chambers on the basis of written submissions. The email dated 15 August 2022 is MFI-1. Judgement in relation to the question of liability arising from the contravention application filed 22 July 2022 reserved. 5 October 2022 (Judge Neville) Interim Hearing in relation to Contravention Application filed 22 July 2022 (part-heard).
Declarations in relation to the contravention application filed 22 July 2022, the part-hard hearing adjourned to 24 November 2022, costs of hearing reserved and judgment in relation to AIP filed 11 January 2022 and heard on 4 October 2022 reserved.
4 October 2022 (Judge Neville) Interim Hearing in relation to Application in a Proceeding filed 11 January 2022 14 September 2022 (Judge Neville) Contravention Applications filed 10 March 2021 and 9 August 2021 withdrawn. AIP filed by Mother 27 January 2022 is withdrawn. 5 August 2022 (Judge Neville) Date for contravention Application moved from 5 October 2022 to 4 October 2022. Listed for pre-hearing compliance check 14 September 2022. 22 July 2022 Mother filed contravention application in relation to Father’s enrolling children in schools without Mother’s consent, failing to facilitate time and failing to ensure children spend time together. 5 May 2022 (Judge Neville) Notation that Counsel advised unavailable on hearing dates listed for contraventions on 5 October 2022 and AIP’s on 7 October 2022. 19 April 2022 (Judge Neville) Listed for contravention hearing of Applications filed 10 March 2021 and 9 August 2021 on 23 August 2021.
Listed for hearing in relation to AIP filed 11 January 2022 and 27 January 2022 on 26 August 2021.25 March 2022 (Judge Neville) Orders by consent that the vexatious proceedings application withdrawn and dismissed, the Mother is restrained from filing any application other than a contravention application without first obtaining leave of the court. Costs reserved. 18 March 2022 (Judge Neville) Notation that the AIP filed 8 October 2021 has resolved in principle. Parties to provide consent minute to Chambers by 22 March 2022. 23 February 2023 (Judge Neville) Vexatious litigant hearing listed for 18 March 2022. 27 January 2022 (Judge Neville) Mother files AIP that the recovery order in orders 25 January 2022 be stayed pending family report for B.
Orders: Notation that D was returned but B was not. Recovery order issued in relation to B.
25 January 2022 (Judge Neville) Children to be returned by 26 January 2022 at the Town AX football ground. If not a recovery order will issue immediately. Costs reserved. 19 January 2022 Fathers file AIP for recovery order for B and D, if the Mother again removes either child she may be arrested without warrant, any costs associated with return to be paid by Mother, orders remain in force for 1 month and Mother pay costs of $5,000. 11 January 2022 Mother files AIP that Orders 30 June 2020 be discharged, children live with Mother, a family report be ordered and various other orders. 10 January 2022 (Judge Neville) Extension provided in relation to procedural directions for filing of tender bundle 13 December 2021 (Judge Neville) Extension provided in relation to procedural directions for filing of tender bundle. 9 December 2021 (Justice Aldridge sitting as the Full Court) Appeal and the Applications in an Appeal filed 15 September 2021 and 21 September 2021 were dismissed. 29 November 2021 (Judge Neville) Procedural orders and matter listed for half day hearing in relation to application filed 8 October 2021 on 11 February 2022. 23 November 2021(1) The application by the Fathers for costs following the applicant’s unsuccessful stay application on 7 August 20220 dismissed. 23 November 2021 Mother ordered to pay costs of Mr Solberg in sum of $3,000.
In CAC1831/2020 the Application filed by the Mother for leave to commence property proceedings out of time is dismissed.15 October 2021 (Judge Neville) Filing directions and listed for half day hearing on date TBA in relation to Application filed 8 October 2021. Notation that Contravention Applications filed 10 March 2021 and 9 August 2021 will be dealt with after the application field 8 October 2021. 8 October 2021 Fathers jointly sought declaration that the Mother be declared a vexatious litigant, all extant applications be dismissed and the Mother prohibited from instituting proceedings under the Family Law Act and the Crimes (Domestic and Personal Violence) Act 2007 (NSW) against the Fathers 25 August 2021 (Judge Neville) Application to adjourn granted, costs reserved, listed for contravention hearing TBA. 9 August 2021 Mother files Contravention Application that Mr Ranwick disseminated the reasons for Judge Hughes of 30 June 2020 to FFF Medical Centre and his partner Ms AN. 21 July 2021 (Judge Neville) Contravention Hearing vacated and listed for 25 August 2021. 5 July 2021 AIP filed by Mr Ranwick on 24 June 2021 withdrawn and dismissed. Response to AIP filed by Mother 25 June 2021 withdrawn and dismissed. Mother to make contribution of $500 towards costs of Applicant Father within 12 months. 24 June 2021 Mr Ranwick files AIP seeking recovery order in relation to D and costs. 12 May 2021 Notation that B was returned to Mr Solberg’s care on 11 May 2021 and the recovery order application is no longer pressed. AIP filed 10 May 2021 dismissed. Mr Solberg’s oral application for costs dismissed. 10 May 2021 Mr Solberg files an AIP for recovery order of B and costs. 13 April 2021 (Judge Neville) Contravention Application listed for hearing before Judge Neville on 23 July 2021. 8 April 2021 Mother files an Appeal in relation to the Orders made 11 March 2021 (EAA33/2021). 11 March 2021 AIP filed on 15 December 2020 and amended AIP filed 10 March 2021 dismissed. Application for recusal dismissed. Noted the only outstanding applications are the Contravention Application filed by the Mother 10 March 2021 and the property and costs application which are reserved. 10 March 2021 Mother files Contravention Application that D was withheld on 28 February 2021. 9 March 2021 Mother amends AIP filed 15 December 2020 to instead seek the interim Orders of 7 August 2020 be discharged and Judge Hughes be recused. 20 January 2021 (Ainslie-Wallace, Ryan & Aldridge JJ) Appeal EAA104 of 2020 dismissed.
Appeal EAA 125 of 2020 withdrawn.17 December 2020 Orders that by consent the Mother may travel to Victoria during period’s children are in her care in January 2021. Oral application of Mr Ranwick to vary handover time for D at Christmas day dismissed. Mother’s application to discharge Order 7 of Orders dated 7 August 2020 adjourned. 15 December 2020 Mother files AIP seeking Order 7 of Orders dated 7 August 2020 be dismissed (which restrains either parents from taking children outside NSW/ Town E). In the alternative, the Mother sought permission to travel to Victoria with the children for the summer holidays. 23 October 2020 Mothers AIP filed 15 October 2020 withdrawn and dismissed. 15 October 2020 Mother files an AIP seeking she be permitted to travel to City J with D to finalise the remainder of possessions at the property. 23 September 2020 Mother files Amended Notice of Appeal (EAA 104 of 2020 and EAA 125 of 2020) 9 September 2020 (Justice Ryan) Appeals EAA 104 of 2020 and EA 125 of 2020 consolidated. 28 August 2020 Mother files an appeal against Orders made 7 August 2020 (EAA125/2020). 20 August 2020 Mother makes an Application for property Orders (CAC1831/2020). 7 August 2020 Application for stay dismissed. Orders for B’s time with Mother until Mother relocates to City AB. 3 August 2020 Mother’s oral application for recusal of Judge Hughes refused. Application for stay pending appeal adjourned. 29 July 2020 Mother filed AIP that the Application be heard by someone other than Judge Hughes, the Orders be set aside pending appeal, that the children live with the Mother in Suburb AM and a variety of other orders. 27 July 2020 Mother files appeal of Orders 30 June 2020 (EAA104/2020) 1 July 2020 (Justice Ryan) Orders made granting leave for the Mother to make an oral application to discontinue the appeal without filing a Notice of Discontinuance. 30 June 2020 Judgment [2020] FCCA 1751 delivered by Judge Hughes. 8 May 2020 Mother files an appeal of Orders made 24 April 2020 (EA57/2020). 22, 23 and 24 April 2020 Matter re-opened for hearing. Matter adjourned for judgment on date TBA. 16 April 2020 The matter was listed for re-opening on 22 and 23 April 2020. 11 March 2020 Mr Ranwick filed an AIP seeking to reopen the proceedings because of a number of incidents that occurred since the end of proceedings, including despite the Mother’s clear intention to do so she did not remove the children from the FVO and a final FVO issued on 6 February 2020 with the children on it. Since 29 November 2019 the Mother made two complaints to police alleging Mr Ranwick breached the FVO by coming into contact with B. Since the trial in October, the Mother had spent most of the time with the children in City J and failed to make both girls available to their Fathers other than for 8 nights. On 1 March 2020 Mr Ranwick pulled over by police due to allegation of physical abuse against D. Since the trial the Mother made three complaints to SafeWork NSW about the business run by the Ranwick family in Town E. 29 November 2019 Mother conceded the issue of spousal maintenance was not pressed at trial and that Mr Ranwick did not have capacity to pay. The Order for spousal maintenance was discharged. Contravention application summarily dismissed. 28 November 2019 Mother filed contravention alleging Mr Ranwick failed to make spousal maintenance payments. 8 – 15 October 2019 5 day Final Hearing. On 15 October 2019 the proceedings were adjourned for judgment on a date to be advised. 5 July 2019 Interim Orders for Mr Ranwick to pay interim periodic de facto spousal maintenance to the Mother of $200 p/w. The Application for lump-sum spousal maintenance dismissed. 31 May 2019 Mother filed AIP seeking lump-sum and de facto spousal maintenance from Mr Ranwick. 12 April 2019 Orders made in parenting proceedings for handover to be in Suburb AM because of the Mother’s lack of transport. Orders for the Mother and Mr Ranwick to undertake psychiatric assessment. 5 April 2019 Mr Ranwick filed a Contravention Application 15 March 2019 Mother’s car towed away immediately following handover. The vehicle was transferred from Mr Ranwick’s name to the Mother’s name in January 2019 but Mr Ranwick was making the loan repayments. Initially the loan repayments were in lieu of child support, but eventually he was assessed to pay child support in addition to the loan repayments so he stopped paying the loan repayments. The finance company contacted him and told him the car would be repossessed and he advised them of the location, dates and times D was due to come to him because he didn’t know the Mother’s address in Suburb AM. At changeover repossession occurred and the Mother then stopped making D available to the Father. 4 March 2019 Mr Solberg made an offer for the Mother to live with the children in his house in Town F and he would move away for $300 p/w. The Mother rejected the offer. 1 March 2019 Interim Orders made for the Mother and Mr Solberg to have ESPR for B and the Mother and Mr Ranwick to have ESPR for D. B to return to living with her Mother and spend alternate weekends with her Father. Mother failed to produce compelling evidence of risk to D. Orders made for D to spend time with Mr Ranwick alternate weekends plus one night in the off week. 12 February 2019 The Mother emailed the Father’s solicitors advising she had obtained emergency accommodation in Suburb AM, a small town halfway between Town E and Town F. 7 February 2019 The Mother wrote to the other parties indicating she was relocating to Town E. Mr Solberg sought proof and received no response. 23 January 2019 The Mother made B available to her Father on 23 January 2019. Two days later she requested B be returned on the basis she intended to file an appeal (she never filed this appeal). 18 January 2019 Court Ordered B remain living with her Father from 23 January 2019 until the Mother relocated in accordance with the Orders dated 15 November 2018. A recovery Order in relation to B was made to be executed in the event B was not made available to her Father. Orders for D to spend time with her Father were suspended and Orders were made for further information to be obtained from GP’s etc. 11 January 2019 Mother filed an Affidavit making a number of allegations of the risk to D in the care of her Father. Mother also alleged Mr Ranwick breached the FVO by publishing some of their communications. 8 January 2019 The Mother did not return to the Town E region. 7 January 2019 Mr Ranwick’s solicitors requested the matter be relisted because the Mother had indicated she would not be returning with the children. The Mother emailed the court alleging D returned from her last visit with Mr Ranwick with significant injuries. December 2018 Mr Solberg and Mr Ranwick travelled to Victoria together and hired accommodation to spend time with the children. The Mother saw them as forming an alliance. 15 November 2018 Orders made for the Mother to choose from a list of rental properties provided by Mr Ranwick of which Mr Ranwick’s Mother would rent in her own name and sublet to the Mother for $100 per week. The parties were to split the moving costs and the Mother would be paid maintenance for the first 4 weeks. 7 November 2018 The Orders of 5 September 2019 were confirmed but the date extended to 8 January 2018 by which the Mother had to return the children. 1 November 2018 Mother filed an application in a case seeking to discharge the orders of 5 September 2018. 31 October 2018 Mr Solberg filed a recovery order with respect to B. 30 October 2018 The Mother did not return to Town E. Mr Ranwick filed a contravention application and an Application for a recovery order with respect to D. 5 September 2018 Interim Hearing. Two proceedings consolidated. Mother ordered to return the residence of the children to the Town E region by 8 October 2018. 1 August 2018 Applications heard together. By consent interim Orders made for children to spend time with Fathers, ICL appointed and proceedings adjourned for interim hearing. 30 July 2018 Mr Ranwick commenced proceedings seeking the return of D to Town E 26 June 2018 Mr Solberg commenced proceedings seeking the return of B to the Town E /Town F district.
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