STONE & STONE - [2018] FamCA 876

FAMILY COURT OF AUSTRALIA

STONE & STONE

[2018] FamCA 876

FAMILY LAW – CHILDREN – consideration of the principles of Rice & Asplund – where no change in circumstances has been demonstrated – application dismissed.

Family Law Act 1975 (Cth)

Stone & Stone [2015] FamCA 14
Stone & Stone & Anor [2016] FamCAFC 141
Rice & Asplund (1979) FLC 90-725
Walsh & Sabey[2017] FamCAFC 119
SPS & PLS (2008) FLC 93-363
McEnearney & McEnearney (1980) FLC 90-866
Marsden & Winch (2009) 42 Fam LR 1
Miller & Harrington (2008) FLC 93-383

APPLICANT:

Ms Stone

RESPONDENT:

Mr Stone

FILE NUMBER:

BRC

1645

2011

DATE DELIVERED:

31 October 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

28 September 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr M Anglin
Salvos Legal Humanitarian

THE RESPONDENT APPEARED IN PERSON

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms K Carmody

INDEPENDENT CHILDREN’S LAWYER:

Ms S Bolton
CNG Law

THE COURT ORDERS BY CONSENT:

Overseas travel

That the children, B born … 2005 and C born … 2006 (“the children”) are to be removed from the Airport Watch List for the periods of their intended overseas travel with such travel dates to be notified to the Australian Federal Police or such other authority by the father.
That the father is at liberty to travel overseas with the children.
That when the children are overseas with the father then the father shall provide the mother with details of the country they are travelling to, their travel dates and an email address while they are overseas.
That within seven (7) days of the date of these Orders the mother shall sign a passport application form for each of the children, with the father to provide the forms to the mother’s solicitor, with the form to be signed by the mother in her solicitor’s office and the forms to be collected by the father within seven (7) days of the forms being signed by the mother.
That in the event the mother refuses to or is unable to sign the passport application forms for ether of the children then the father is at liberty to apply for a passport without the need for the mother’s signature and the passport shall issue pursuant to Order 3 of the Orders dated 22 January 2015 providing for the father to have sole parental responsibility for the children.

THE COURT ORDERS:

That the mother’s Application in a Case filed 14 August 2018 be dismissed.
That despite Order 10 of the Orders dated 22 January 2015 which provides for the children’s names to be placed on the Airport Watch List, the father be permitted to take the children out of the jurisdiction of the Commonwealth of Australia to the United Kingdom during the 2018/2019 Queensland gazetted school holidays.
That pursuant to s.121 of the Family Law Act 1975, the mother be granted leave to provide to any Psychiatrist engaged by her, a copy of:
(a) the psychiatric report prepared…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: STONE & STONE [2018] FamCA 876
Case: [2018] FamCA 876
Decision Date: 31 October 2018

CaseChat Overview and Summary

This decision concerns an application to vary parenting orders. The applicant sought to alter existing arrangements for the children, but the court was required to consider whether the threshold for such an alteration had been met.

The central legal issue before the court was the application of the "rule in Rice & Asplund," which concerns the circumstances under which previous parenting orders can be revisited. Specifically, the court had to determine whether the applicant had demonstrated a sufficient change in circumstances since the making of the original orders to justify a full hearing on the merits of the proposed variation.

The court, referencing the principles articulated in *Walsh & Sabey* and *SPS & PLS*, explained that the rule in *Rice & Asplund* is a practical application of the best interests principle, designed to prevent endless litigation that can be detrimental to children. It is not a technical rule but a determination on the merits, requiring a prima facie case of changed circumstances. If such a case is not established, the application is dismissed not for procedural reasons, but because the child's interest in avoiding further litigation outweighs the need to embark on a hearing. The court noted that this principle is particularly important in custodial disputes to avoid the psychological harm caused by "perennial football matches" between parents. The court posed the question, adapting the language from *SPS & PLS*, of whether, assuming the applicant's evidence is accepted, there is a sufficient change of circumstances to justify embarking on a hearing. This requires establishing a prima facie case of changed circumstances and then considering whether that change is sufficient to warrant a full hearing.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Of great assistance to trial Judges was the recent summary of the principles in these cases, articulated recently by Justice Murphy in Walsh & Sabey[2017] FamCAFC 119, which I respectfully set out now:8. It is well settled that the “rule in Rice & Asplund” can be applied at the outset of a hearing or proceedings or at the end of a hearing.9. In the important decision of SPS & PLS, (“SPS”) Warnick J held that the discussion of the rule in the various authorities had “not always used consistent terminology”. His Honour noted, in particular, that the term “threshold” has had different connotations. His Honour went on to say that he would in that judgment “refer to the situation arising when the question is posed and answered at the outset of a hearing as treatment of the question as a ‘preliminary matter’”. It is in that sense that the expression is used in these reasons of mine. As it seems abundantly clear to me, the treatment of the rule in that manner is what was contemplated and undertaken by the parties and by her Honour in the proceedings below. 10. In SPS, Warnick J went on to hold that: … At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.…The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order. 11. His Honour went on to say this:… [I]n 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.(Emphasis added)12. Yet, as his Honour was at pains to point out, the rule is not the application of some esoteric principle but rather, the practical application of a principle designed to avoid “endless litigation” to the detriment of the relevant children in circumstances where otherwise the principles of res judicata do not apply.13. Thus, for example, Nygh J said in McEnearney & McEnearney:… the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.14. To similar effect, Warnick J said in SPS:Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This “evil” is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result. (Emphasis added)15. The “evil” referred to is the undoubted harm to children of “a perennial football match between parents” and the canvassing “again and again” of issues relating to their best interests. That situation can in my view be distinguished from circumstances in which the parties express their agreement about parenting arrangements in a consent order but are now no longer in agreement and where it is said that the now absence of agreement is due to circumstances that have changed since the making of the consent orders. 16. In Marsden & Winch the Full Court said:[57]. In Miller… the court posed the question:[105] Adapting the language used by Warnick J in SPS and PLS … the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing? [58]. That question might be better formulated in another way in the following proposition, namely that there is a requirement: (1) for a prima facie case of changed circumstances to have been established; and (2) for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.(Citations omitted)”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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