Swenson and Brantley

[2019] FCCA 2438

FEDERAL CIRCUIT COURT OF AUSTRALIA

SWENSON & BRANTLEY [2019] FCCA 2438

Catchwords:
FAMILY LAW – Parenting – final parenting orders made in 2015 – consideration of the ‘rule’ in Rice v Asplund – consideration of ‘best interests principle’ – application dismissed.

Cases cited:
Cameron & Brook [2018] FamCAFC 175
Carriel & Lendrum (2015) FLC 93-640
In the marriage of Rice & Asplund (1979) FLC 90-725
Marsden & Winch [2009] FamCAFC 152
Searson & Searson [2017] FamCAFC 119
SPS & PLS [2008] FamCAFC 16

Applicant: MS SWENSON

Respondent: MR BRANTLEY

File Number: DGC 2935 of 2018

Judgment of: Judge Mercuri

Hearing date: 29 April 2019

Date of last submission: 29 April 2019

Delivered at: Melbourne

Delivered on: 2 September 2019

REPRESENTATION

Counsel for the applicant: Mr Kanarev

Solicitors for the applicant: Pentana Stanton

Counsel for the respondent: Ms Vohra SC

Solicitors for the respondent: Emera Smith

ORDERS

1. The mother’s amended initiating application filed 28 February 2019 be dismissed.

2. Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

AND THE COURT NOTES THAT:

(A)Pursuant to section 62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2935 of 2018

MS SWENSON

Applicant

And

MR BRANTLEY

Respondent

REASONS FOR JUDGMENT

Introduction

1. The mother filed an initiating application for parenting orders in respect of the child of the relationship, X born … 2010 (“X”) on 27 August 2018.

2. On 5 November 2018, her Honour Judge Small dismissed paragraph 4, 5 and 6 of the mother’s application filed 27 August 2018. The mother then filed an amended initiating application on 28 February 2019 in which she again sought parenting orders in respect of X (“the amended application”).

3. The father opposed the mother’s amended application and argued that the principles in Rice v Asplund[1] apply and the amended application ought to be dismissed.

   [1] In the marriage of Rice & Asplund (1979) FLC 90-725.

4. The matter was listed for a preliminary hearing on the Rice v Asplund point before the court on 29 April 2019.

Background

1. Although the present proceedings were issued in August 2018, these parties have been involved in litigation before this court since X’s birth in 2010. 

2. That procedural history is relevant to the matters presently before the court and ought to be set out in full.

3. The parties commenced living together in or about 2006, were married on … 2009 and separated in or about early May 2010, when X was only some three months of age.  The parties divorced on 19 April 2012.  The father has a child from a previous relationship, M, born … 2006, with whom he spends regular and frequent time. 

4. Whilst married, the parties lived together in Town N, NSW.  After separation, the mother moved back to Victoria, some 600 kilometres away from the former family home. 

5. The father also moved to Victoria in order to be closer to X and so that he could spend meaningful time with her.  The father is employed as a public servant with the Employer B.

6. The father commenced proceedings in September 2010 when X was only 7 months old seeking parenting orders permitting him to have time with his daughter (“2010/11 proceedings”). 

7. Final parenting orders were made by consent in those proceedings on 6 June 2011 (“June 2011 final orders”).

8. The father deposed that during the 2010/11 proceedings, the mother also obtained an intervention order against the father which was ultimately the subject of a successful appeal in the County Court and in respect of which he obtained a costs order in his favour against Victoria Police who had initially applied for the intervention order on behalf of the mother.[2]

   [2] Affidavit of the father affirmed and filed 30 October 2018 at paragraph 14.

9. On 18 January 2013, when X was almost 3 years of age, the mother brought a fresh application seeking to discharge the June 2011 final orders.  In that application, the mother sought orders which would have had the effect of significantly reducing the father’s time with X to one overnight a month and one daytime visit per week.

10. Ultimately, after two years of litigation, the parties, to their credit, agreed to final parenting orders on 8 July 2015 (“2015 final orders”).  Those orders resulted in X spending more time with her father than had previously been provided in the June 2011 final orders.  The 2015 final orders are 12 pages long, include three schedules and are very detailed.[3]  In those proceedings, the court appointed an Independent Children’s Lawyer and the 2015 final orders were made by consent of both parents and the Independent Children’s Lawyer. 

    [3] The 2015 final orders are annexed to the mother’s affidavit sworn and filed 28 February 2019.

2015 final orders

1. As stated, the 2015 final orders were comprehensive.

2. Given X’s age at the time the orders were made, they provided for a gradual increase in her time with the father, commensurate with her age and stage of development.  The final increase in time was set out in Schedule C to those orders and commenced operation on 1 January 2018.  Each of the schedules provide for daytime and overnight time over an 8 week cycle.  X’s time with the father correspond with his 10/14 rotating work roster.

3. The parties also specified:

   a)the time X would spend with each parent on her birthday from 2016 to 2027 when she turns 17; and

   b)the time that X would spend with the parties on each of their respective birthdays each year from 2016 through to 2027.

4. The 2015 final orders:

   a)dealt with X’s time with the father during kindergarten and then school holidays, again progressively increasing and providing that upon X attaining the age of 8 years, she would commence spending half of each school term holidays and a block of half of the long summer holidays with the father;

   b)specified that changeover is to occur on weekends at Town K and on weekdays in Town L; and

   c)provided for the parties to keep each other informed of any significant injury or illness affecting X and keep each other informed of any medical practitioners on which X attends from time to time. 

5. Order 16 of the 2015 final orders relevantly provides:

   The parties agree that X will not be taken to any psychologist/psychiatrist without first obtaining the written consent of the other parent.[4]

   [4] Annexure S-1 of the affidavit of the mother sworn and filed 28 February 2019.

6. There are various restraints in the 2015 final orders.[5]

   [5] Annexure S-1 of the affidavit of the mother sworn and filed 28 February 2019.

7. The 2015 final orders also provide for X to be able to travel overseas with either parent, provided the requisite notification is given to the other parent and subject to certain limitations as to where such travel can occur.[6]  

   [6] Annexure S-1 of the affidavit of the mother sworn and filed 28 February 2019.

8. It is the father’s evidence that the 2015 final orders have, “for the large part” been working well.[7] 

   [7] Affidavit of the father affirmed and filed 30 October 2018 at paragraph 18.

9. The mother deposed to the following in support of her application:

   ‘Between July 2015 and October 2017, the current orders have been undertaken smoothly.  The respondent father … has always received make up time for time missed as well as additional time on occasions during the school holidays.  Despite this, communication with Mr Brantley has continued to be difficult due to relentless text messaging at times and telephone calls.[8]

   [8] Affidavit of the mother sworn and filed 27 August 2018 at paragraph 7.

10. At the time the 2015 final orders were made, the mother and Mr A were engaged to be married.  They were indeed married in … 2015, some three months after the 2015 final orders were made. 

Mother’s August 2018 application

1. The mother’s initiating application filed on 27 August 2018 sought to discharge all of the July 2015 orders on the basis that she wanted:

   …to relocate to the Town C region of Victoria in support of my husbands (sic)… employment opportunities and to vary the Orders dated 8 July 2015 due to substantial and significant change since the Orders were entered.[9]

   [9] Affidavit of the mother sworn and filed 27 August 2018 at paragraph 2.

2. The ‘substantial and significant change’ the mother relies upon is:

   a)the fact that she married her husband, Mr A on … 2015; and

   b)the fact that the mother and Mr A had a child together, J born on … 2017 (“J”).

3. The mother’s evidence was that following J’s birth, she and Mr A reviewed their situation and decided to return to regional Victoria to enable J to spend regular time with her half-brothers (namely Mr A’s two sons from a previous relationship).  The mother gave evidence that Mr A moved to Melbourne in December 2015, leaving his two then teenage sons with their mother.[10]  It is common ground that those sons are now both adults.

   [10] Affidavit of the mother sworn and filed 27 August 2018 at paragraph 6.

4. No evidence was given as to why Mr A’s sons could not spend time with their father and J in Melbourne or indeed what their medium to long term intentions are regarding remaining in regional Victoria.

5. The mother also gave evidence that whilst the 2015 final orders had been running smoothly, once J was born it became difficult for her to attend the midweek changeover in Town L.[11] 

   [11] Affidavit of the mother sworn and filed 27 August 2018 at paragraph 9.

6. The father’s evidence was that following J’s birth, he offered to drive X home after his midweek time with her so that the mother did not need to interrupt J’s sleep time.[12] The mother refused this offer, and offered to replace the father’s midweek time with a Facetime call.[13]

   [12] Affidavit of the father affirmed and filed 30 October 2018 at paragraph 29.

   [13] Affidavit of the father affirmed and filed 30 October 2018 at paragraph 30.

7. The father’s evidence is that he wants to retain the midweek time with X as this is important time where he takes X swimming. The father submitted that the mother’s proposal to replace this midweek time with skype or telephone contact would unduly impact on the quality of X’s time with him.[14] 

   [14] Affidavit of the father affirmed and filed 30 October 2018 at paragraph 30.

8. It is common ground that since the making of the 2015 final orders, both the mother and the father have moved residence.  The mother moved from the Town L home to Town D, some 30 minutes away.  The father moved from Town K to Town E, also a further 30 minutes away.  The consequence of both these moves is that the distance between the parents’ respective homes is now about 1 hour and 50 minutes.  Pursuant to the 2015 final orders however, changeover remains at Town K on weekends and Town L during the week.

9. As stated above, the 2015 final orders provided that from January 2018, Sunday night changeover was to occur at 6:00pm rather than 5:00pm.  The mother deposed that this shift in changeover time on Sundays also became an additional difficulty following the birth of J.  The mother asserted that by the time X gets home it is close to 7:30pm and by the time she has dinner and a shower, she is not getting to bed until about 9:00pm and is then tired on Monday morning for school.[15]

   [15] Affidavit of the mother sworn and filed 27 August 2018 at paragraph 13.

10. The father challenged the mother’s evidence in relation to this and deposed that before he takes her to changeover, he feeds X, she has a shower, and he washes and folds her clothes so they are ready for her for the following week at school.  The only thing that he does not do is make her lunch for school on Monday.[16]

    [16] Affidavit of the father affirmed and filed 30 October 2018 at paragraph 32.

11. In the mother’s application filed on 27 August 2018, the mother sought:

    a)to remove X’s midweek time with her father;

    b)to alter the arrangements over the long summer holidays from X spending half of the holiday period with her father to a week about arrangement over the long summer holidays;

    c)to move away from the agreed 4 weekends over an 8 week period to allow X to spend each alternate weekend with her father;

    d)to alter the arrangements for Christmas to allow X to spend Christmas Day with J each year, particularly while J is so young; and

    e)sole parental responsibility for decisions regarding X’s education on the basis that under the current arrangements, she is responsible for all costs associated with X attending private school. 

12. The mother’s proposal for the father to spend alternate weekends with X instead of the previously agreed 4 weekends over an 8 week period was submitted on the basis that it would allow “more streamlined arrangements and consistency for X …(and to) allow us to undertake activities with X as a family as Mr A also works on a rotating roster”.[17]

    [17] Affidavit of the mother sworn and filed 27 August 2018 at paragraph 18.

13. Importantly, the mother did not identify any risks to X in the notice of risk on 27 August 2018.

14. The mother’s application came before her Honour Judge Small on 5 November 2018.  On that occasion, her Honour made orders dismissing paragraphs 4, 5 and 6 of the mother’s application.   Order 4 related to the mother’s request to be able to relocate the child’s principal place of residence to ‘between Town O and Town C’.  Order 5 required the mother to consult with the father about school enrolment following such relocation and if no agreement could be reached, the mother could make a decision.  Order 6 dealt with the mother’s proposal for X to spend time with the father each alternate weekend and on birthdays and special occasions.

15. All other aspects of the mother’s application were adjourned to 7 March 2019 for a mention.

Mother’s amended initiating application

1. The mother did not appeal the orders made by her Honour Judge Small on 5 November 2018.  However, on 28 February 2019, the mother filed an amended initiating application in which she sought:

   a)sole parental responsibility in respect of both education and medical issues;

   b)an order permitting X to relocate to the Town C region;

   c)for X to be enrolled into School F;

   d)for X to attend on a psychologist; and

   e)for X to spend time with the father on alternate weekends and special occasions.

2. The mother also sought orders that:

   a)Ms G (the father’s partner’s mother) be restrained from being in the presence of X whilst X is in the father’s care; and

   b)the father be in substantial attendance when X is in his care and if he cannot do so, that X be returned to the mother’s care.

Mother’s evidence

1. The mother and Mr A filed an affidavit in support of her amended initiating application. 

2. In her supporting affidavit of 28 February 2019, the mother deposed to the following:

   a)her husband has obtained a position of public servant at Town C;[18]

   b)she and Mr A intend to purchase a property and raise animals and undertake cropping;[19] and

   c)Mr A has two children from his previous relationship who are now 18 and 20 years respectively who live in Town P with their mother about one hour and 50 minute drive from Town C.[20]

   [18] Affidavit of the mother sworn and filed 28 February 2019 at paragraph 14.

   [19] Affidavit of the mother sworn and filed 28 February 2019 at paragraph 16.

   [20] Affidavit of the mother sworn and filed 28 February 2019 at paragraphs 17 and 18.

3. The mother’s application to relocate to Town C was made on the basis that:

   a)it will be closer to Mr A’s two older children and allow them to have a closer relationship with J and X;

   b)when X is older, she will be able to catch public transport to see her father;

   c)she and Mr A have a passion for country life and would like to provide the opportunity to X and J to grow up on a farm;

   d)the cost of living in Town C is cheaper than Melbourne and a move to the country would allow them to live on Mr A’s income; and

   e)Mr A has a new role based in Town C, (although he may need to work in Town Q at times) which has an increased salary of about $15,000 per annum with an allowance and 10% location allowance.[21]

   [21] Affidavit of the mother sworn and filed 28 February 2019 at paragraph 20.

4. The mother also sought an order for sole parental responsibility on the basis that since the 2015 final orders were made:

   On numerous occasions (the father) impeded X’s required medical attention and treatment, such occurred even when it was directly recommended by her Medical Health Practitioners.  He has… on most occasions, blatantly refused her treatment and on frequent occasions not acted in X’s best interests in relation to matters concerning her health.[22]

   [22] Affidavit of the mother sworn and filed 28 February 2019 at paragraph 38.

5. The mother also asserts that a relocation to Town C would only increase travel time between the parents’ respective homes by 20 minutes. 

6. The mother further asserted that in about November 2018, X told her that she was having trouble breathing. The mother took X to her family doctor on 16 November 2018 who determined that X was suffering from depression and anxiety and referred her to Headspace.  In January 2019, X was then referred to Region H Counselling Service.[23] 

   [23] Affidavit of the mother sworn and filed 28 February 2019 at paragraph 44.

7. The mother also gave evidence that:

   a)X has been regularly contacting the Kids Help Line which is concerning;[24] and

   b)between December 2018 and January 2019, X has been very clingy and anxious;[25] 

   c)she advised the father of X’s anxiety and referral to see a psychologist on 29 January 2019 and that the father’s response was not child focused;[26] and

   d)on 11 November 2018, she found a note written by X in which she said that she didn’t want to spend time over the summer holidays with her father.[27]

   [24] Affidavit of the mother sworn and filed 28 February 2019 at paragraph 45.

   [25] Affidavit of the mother sworn and filed 28 February 2019 at paragraph 46.

   [26] Affidavit of the mother sworn and filed 28 February 2019 at paragraphs 48 and 49.

   [27] Affidavit of the mother sworn and filed 28 February 2019 at paragraph 53.

Mr A’s evidence

1. Mr A also filed an affidavit in support of the mother’s amended application.  He deposed to the following:

   a)prior to his relationship with the mother, he lived on a farm in Town Q;

   b)following his marriage to the mother on … 2015, he moved to Melbourne in December 2015 and in … 2016, he transferred from the Town Q employer where he was employed with Employer B to the Suburb R employer and then in … 2016 to Suburb S employer; and

   c)following the birth of J, he and the mother wished to move to regional Victoria so that the children could have a closer relationship with their half siblings, namely his two sons from his previous marriage, Mr T born … 1998 and Mr U born … 2001. 

2. Mr A annexed a copy of a letter of offer of transfer from the Employer B which relevantly stated:

   I wish to confirm your transfer to the position of public servant at Town C .

   Your transfer is effective from … 2019.

   Your salary and other employment conditions will remain the same.

   …[28]

   [28] Annexure-1 of the affidavit of Mr A sworn and filed 28 February 2019.

1. Mr A relevantly stated:

   We previously sought to apply for relocation before I applied for this position, however we were advised on attendance at Dandenong Federal Magistrates Court (sic) that in order to seek approval for relocation we must already have been successful in obtaining employment to the area we wished to relocate.[29]

   [29] Affidavit of Mr A sworn and filed 28 February 2019 at paragraph 10.

2. Mr A further deposed that his new role will result in an additional $15,000 per annum increase in allowances.

Father’s evidence

1. The father deposed to the fact that X was the subject of “protracted and acrimonious” legal proceedings between 2010 and 2015.[30] In addition, during this time, the mother also made allegations that the father had engaged in family violence and also that he had sexually abused his daughter.[31]  The father stated that none of the allegations against him were sustained.[32]   

   [30] Affidavit of the father affirmed 14 and filed 15 April 2019 at paragraph 20.

   [31] Affidavit of the father affirmed 14 and filed 15 April 2019 at paragraph 20.

   [32] Affidavit of the father affirmed 14 and filed 15 April 2019 at paragraph 20.

2. The father also gave evidence that:

   a)notwithstanding the mother’s assertion that X had been diagnosed with anxiety and depression by her GP in mid-November 2018, he was not advised of this until the end of January 2019;[33]

   b)on or about 31 January 2019, he instructed his lawyers to seek further information from the mother about X’s condition;[34] and

   c)the mother’s lawyers responded on 26 February 2019 annexing an incomplete copy of the referral which had been dated 4 February 2019.[35]

   [33] Affidavit of the father affirmed 14 and filed 15 April 2019 at paragraphs 28 to 32. 

   [34] Affidavit of the father affirmed 14 and filed 15 April 2019 at paragraph 30.

   [35] Affidavit of the father affirmed 14 and filed 15 April 2019 at paragraph 31.

3. The father further attested to the fact that it was only when he received the mother’s affidavit in these proceedings on or about 28 February 2019 that he was provided with more detail about the circumstances surrounding the diagnosis and referral.[36]

   [36] Affidavit of the father affirmed 14 and filed 15 April 2019 at paragraph 32.

4. The father conceded that his son M provided him with a copy of the note which X had purportedly written.[37]  He says that X did not give it to him, and he did not discuss it with her as he did not wish to cause her any embarrassment and it was apparent that X had not intended to give it to him.[38]  The father notes that the mother says she discovered this note on 11 November 2018 but did not at any stage discuss it with him.  The first he became aware of the mother’s concerns about this note was when he received the mother’s affidavit of 28 February 2019.[39] 

   [37] Affidavit of the father affirmed 14 and filed 15 April 2019 at paragraph 31.

   [38] Affidavit of the father affirmed 14 and filed 15 April 2019 at paragraph 31.

   [39] Affidavit of the father affirmed 14 and filed 15 April 2019 at paragraph 32.

5. The father gave evidence that due to his rostered work requirements, the mother’s proposal would unreasonably limit X’s time with him as he would not be free to spend time with her on each alternate weekend.[40]  Moreover, the father’s case is that this was a factor which was the subject of the proceedings which gave rise to the comprehensive orders made in 2015. 

   [40] Affidavit of the father affirmed 14 and filed 15 April 2019 at paragraph 52.

6. The father has included evidence which questions the claimed financial benefit to Mr A of his proposed relocation to Town C.  The father’s position is that the mother’s application will see a significant reduction in X’s time with him, and a significant reduction in the time she spends with her half-brother M.

7. The father also gave evidence about:

   a)the financial support he provides for X;[41]

   b)his flexibility in ensuring that X is able to engage in after school activities and maintain the midweek time she spends with him; and

   c)his attempts to engage in a dialogue with the mother to ensure that they are able to make joint decisions in relation to education and health care for X.[42] 

   [41] Affidavit of the father affirmed 14 and filed 15 April 2019 at paragraph 62.

   [42] Affidavit of the father affirmed 14 and filed 15 April 2019 at paragraphs 66 to 69.

8. The father took issue with the mother’s assertions that:

   a)X has a difficult relationship with his partner or his partner’s mother;[43]

   b)the father and his partner inappropriately discipline X;[44] and

   c)the father’s partner or her mother ridicule X;[45]

   and gave contrary evidence in this regard.

   [43] Affidavit of the father affirmed 14 and filed 15 April 2019 at paragraph 75.

   [44] Affidavit of the father affirmed 14 and filed 15 April 2019 at paragraph 78.

   [45] Affidavit of the father affirmed 14 and filed 15 April 2019 at paragraph 78.

Rice v Asplund

1. There is no significant dispute between the parties as to the principles which apply in the determination of this matter.  The difference between them is as to how those principles ought to be applied to the facts in this case.

2. In Rice & Asplund, the court said:

   … where an order has been made in relation to the issue of where [a] child should live the Court should not lightly entertain an application to reverse that earlier order unless it is satisfied that there are changed circumstances (in the sense that a new factor has arisen or some material factor was not disclosed at the previous hearing) which would justify the reversal.[46]

   [46] In the marriage of Rice & Asplund (1979) FLC 90-725 at [41].

3. In Marsden & Winch [2009] FamCAFC 152, the Full Court considered an appeal from a decision to dismiss proceedings in which an applicant sought to re-agitate parenting orders in respect of a child. That case concerned an application by the father in 2008 to re-litigate parenting orders made by the court in 2006.

4. On appeal to the Full Court, the father challenged, among other things, the manner in which:

   …the trial judge had applied the ‘threshold test’ (the so-called rule in Rice & Asplund…) and challenged the finding that the father’s circumstances were not sufficient to justify a hearing of his application filed 28 July 2008…[47]

   [47] Marsden & Winch [2009] FamCAFC 152 at [8].

5. In considering this ground, the Full Court relevantly said:

   [41] Warnick J in SPS & PLS [2008] FamCAFC 16… said…

   …The “rule” in In the Marriage of Rice and Asplund … that, where there has already been a final order in respect of parenting issues, before the court embarks on a rehearing of those issues, the applicant must establish a significant change of circumstance – is certainly useful, if not essential.  But it is not the primary principle in applications for parenting orders.  Nor is its utility or weight uniform across cases in which it might be applied.  In particular, those attributes vary, according to whether the rule is applied at the outset of or at the end of a hearing.

   [42]… Before turning to what Warnick J said of it, it is useful to recall that Rice & Asplund involved an appeal from custody orders which reversed an order made nine months beforehand.  In her reasons for judgment… Evatt CJ said of the position of a court confronted with an application to change an earlier order that:

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

   …

   [44] As Warnick J discussed, the purpose of the ‘rule’ is to discourage “endless litigation”.  In addition, as Nygh J said in McEnearney:

   …

   58.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.[48]

   [48] Marsden & Winch [2009] FamCAFC 152 at [41]-[45].

6. The Full Court then adopted the following comments and conclusions of Warnick J in his decision in SPS & PLS [2008] FamCAFC 16 (“SPS”):

   When the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination ‘on the merit’. 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.[49]

   [49] Marsden & Winch [2009] FamCAFC 152 at [47].

7. Importantly, the Full Court went on to say:

   In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.[50]

   [50] Marsden & Winch [2009] FamCAFC 152 at [48].

8. The Full Court acknowledged that there would, of course, be circumstances in which the court would need to reconsider decisions previously made in light of significant changes.  Each case ultimately would depend on the particular circumstances of their own facts.  However, the Full Court did identify the following factors to assist the court to make that determination in any given case, namely:

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

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

   (iii)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.[51]

   [51] Marsden & Winch [2009] FamCAFC 152 at [50].

9. The issue of whether it is necessary to have regard to the section 60CC factors in considering the ‘best interest principle’ was considered in Carriel & Lendrum (2015) FLC 93-640. In that case, the Full Court held:

   …where the principle in Rice & Asplund is being considered, it will not be appropriate or necessary to discretely address many of the factors in s 60CC of the Act in determining where the best interests of the child might lie.[52]

   [52] Carriel & Lendrum (2015) FLC 93-640 at [56].

10. The Full Court went on to state:

    In a case where the principle in Rice & Asplund 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/ren 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/ren 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/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.[53]

    [53] Carriel & Lendrum (2015) FLC 93-640 at [57].

11. Where a decision is to be made at a preliminary stage in the proceedings, and without the benefit of testing the evidence before the court, the question of whether or not a prima facie case is made out must be determined by reference to the applicant’s evidence taken at its highest.

12. Counsel for the mother says that the circumstances in this case are akin to those in Cameron & Brook [2018] FamCAFC 175, in which the Full Court said:

    We are not persuaded that the situation here is analogous to a case involving the application of the ‘rule in Rice and Asplund’.  There is here no attempt to reagitate issues previously agitated or issues addressed and settled by the consent orders that were made three years previously.  The instant application involves a new question relating to an aspect of parental responsibility that was not at all in the contemplation of the parties at the time of the original consent orders. [54]

    [54] Cameron & Brook [2018] FamCAFC 175 at [37].

13. The mother’s argument is that there has been a substantial change since the 2015 final orders were made, such that her application ought to be permitted to proceed to final hearing and determination on its merits. 

14. It was submitted on behalf of the mother that the history of the litigation between the parties is simply a reflection of the toxic relationship between them and the ongoing dispute between them.

15. Importantly however, the mother’s case is that there has been a significant change in circumstance which justifies embarking on further litigation, namely:

    a)the mother and Mr A married three months after the final orders were made in 2015, they now have a child together who is one year old and that this represents a paradigm shift in that the mother now needs to parent two children;

    b)Mr A has obtained a promotion and as he is the primary wage earner, whereas the mother was previously financially independent and earning over $100,000 at the time of the 2015 final orders;

    c)as a result of Mr A’s move to Town C to take up his new role, the family are unable to live together, resulting in the children only seeing Mr A two nights per week and the mother not having the emotional support of Mr A on a daily basis;

    d)when the 2015 final orders were made providing for midweek time, the parties lived much closer together, and the midweek time is already problematic given that the parents have each moved further away from each other and will become more so if the mother is permitted to relocate with X to Town C;

    e)changeover currently occurs at Town L, which is no longer convenient to either party as neither party lives there; and

    f)the parties have difficulty agreeing on anything relating to X especially medical matters, therefore it is important that one person has the ability to make the final decision.

16. It was also submitted that when one looks at the previous orders made in this proceeding:

    a)at the time the 2011 final orders were made, X was only two years of age; and

    b)at the time of the 2015 final orders were made, X was only 6 years of age. 

17. In both sets of proceedings, X had no voice. It was submitted that now that she is nine years of age, X is in a better position to express her own views through a child inclusive conference and/or a family report, and this is a relevant factor in determining whether the mother’s application ought to be permitted to proceed.

18. In support of her application, the mother also relied on the decision of Searson & Searson [2017] FamCAFC 119 (“Searson”), which was argued to be directly on all fours with the present circumstances.  In Searson, Murphy J delivered the leading judgment. 

19. The background in Searson was as follows:

    a)The case involved parenting proceedings for three boys.  In 2015, final parenting orders were made by consent which provided for the children to live with the mother and spend time with the father.

    b)On 5 September 2016, the mother filed a further application seeking to vary the parenting orders, including an application permitting her to relocate to Queensland from Melbourne.

    c)The parties agreed that the Rice & Asplund point ought to be dealt with as a preliminary matter.

20. At first instance, the mother’s application was dismissed.  On appeal, the trial judge’s decision was reversed.

21. Murphy J, with whom the other members of the Full Court agreed, referred to the comments by Warnick J in SPS set out above and added:

    [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.

    …

    [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.[55]

    [55] Searson & Searson [2017] FamCAFC 119 at [10], [12].

22. Murphy J went on to say:

    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.[56]

    [56] Searson & Searson [2017] FamCAFC 119 at [16].

23. It was submitted on behalf of the mother that in this case and having regard to her evidence, both limbs of this test are satisfied. 

24. After considering the facts before the court,[57] Murphy J concluded that the trial judge had erred in concluding that there had not been the requisite change of circumstances to warrant the proceeding going ahead.  The mother submitted that the same conclusion ought to be reached in the present case.

    [57] At [44] of the decision in Searson.

25. In particular, it was submitted that in this matter, like in Searson:

    a)the agreement of the parties on which the 2015 final orders were based has broken down;

    b)the 2015 final orders proceeded on the basis that the parties lived in close proximity to each other;

    c)there has been considerable difficulty in compliance with the orders on the part of both parties;

    d)the mother has deposed to significant stress on her;

    e)at the time the 2015 final orders were made, the mother and Mr A were engaged but not married; now they are married and Mr A is X’s stepfather; and

    f)in this case, the mother has deposed to additional tension as a result of the father not supporting her care of X in a financial sense.

26. Counsel for the mother relied upon the following comments made by Murphy J in Searson:

    In my respectful view the mother presented a compelling prima facie case that the circumstances relevant to the co-parenting of the children had changed since the making of the consent orders.  Equally, in my view, she presented a compelling case that the mooted changes were substantial. 

    The mother… recognised that the issues for the children were significant; postulated a family report and, in the absence of agreement between her and the father, sought that the court determine those significant issues.  Whatever be the parameters of the so-called rule in Rice & Asplund, I am entirely unable to see, in the circumstances of this particular case, how the rule could apply so as to prevent that determination by the court.[58]

    [58] Searson & Searson [2017] FamCAFC 119 at [45], [46].

1. In conclusion, it was submitted on behalf of the mother that as circumstances have substantially changed, the rule in Rice & Asplund should not prevent this matter going to a full hearing.

2. Senior counsel for the father cautioned against applying the outcome in Searson to the facts before this court on the basis that the facts in this care are significantly different to the facts in Searson. In particular, it was submitted that in Searson is distinguishable because:

   a)In Searson, both parties conceded that the consent orders had never worked from the beginning; whereas the evidence in this case, even on the mother’s own affidavit material is that:

   i)she has complied with the orders to the best of her ability and continues to do so;[59]

   ii)the time X spends with her father is determined by his work roster and does not therefore occur on a set day. Whilst this is difficult, a conscious effort is made to ensure that X spends regular and substantial time with her father;[60] and

   iii)between July 2015 and October 2017, the 2015 final orders “have been undertaken smoothly”.[61]

   b)Although at the time the parenting orders were made in Searson, the mother had deposed to having started a relationship with her boyfriend,[62] when the application was made to revisit the consent orders, the mother was in a permanent relationship with her partner and he was said to have had a significant role in the day-to-day care of the children.  It was said that this constituted a significant change in the case.  By comparison, in the present case, at the time the 2015 final orders were made, the mother and Mr A were already engaged and he clearly had a significant and committed relationship with the mother and the child.

   [59] Affidavit of the mother sworn and filed 28 February 2019 at paragraph 10.

   [60] Affidavit of the mother sworn and filed 28 February 2019 at paragraph 11.

   [61] Affidavit of the mother sworn and filed 27 August 2018 at paragraph 7.

   [62] Searson & Searson [2017] FamCAFC 119 at [44(f)].

3. It was argued that these two factors are sufficient to distinguish the reasoning in Searson from the present facts. 

4. In addition, senior counsel for the father submitted that at its highest, to the extent that the mother can point to a change in circumstances, it is a change which the mother (and her husband) have manufactured for the purpose of the mother’s application. At the time that these proceedings were issued, the mother and Mr A expressed a desire to relocate to regional Victoria.  There was no firm plan, nor indeed had they identified specifically where they intended to relocate. 

5. It was only after the mother’s August 2018 application was dismissed by her Honour Judge Small that Mr A accepted a role at Town C.   Importantly, it was also only after her Honour’s decision that the mother identified concerns about X’s wellbeing and obtained a mental health plan in November 2018. 

6. It was submitted on behalf of the father that, by her actions, the mother has sought to hold the court and the father to ransom. 

7. There is much force to the father’s submission in this regard.

Consideration

1. Unlike Searson, the fact that the mother and Mr A are now married is not a significant change.  This is not a case where a relationship at the time of trial was in its nascent phase and that now, having stood the test of time, the parent’s new partner is going to play a significant role in the children’s lives. 

2. It is common ground that at the time the 2015 final orders were made, the mother and Mr A were engaged to be married.  They were in a committed relationship which they were in the process of formalising.  The fact that they did marry some three months later in that context is not a significant change. 

3. I am also not persuaded by the submission that the mother and Mr A having had a child together since the 2015 final orders were made constitutes a significant change in and of itself.  Whilst there are some obvious practical issues which may arise from the mother having to parent two children instead of one, these issues do not amount to a significant change as contemplated by Rice & Asplund. 

4. Mr A’s transfer to Town C is somewhat more nuanced.  It was clearly not a factor in play at the time that the 2015 final orders were made, or at the time that the court dismissed aspects of the mother’s August application. 

5. That however, is not the end of the matter.  Even if I were persuaded that the offer to Mr A of a transfer to Town C constituted a significant change, I must still consider whether it is in X’s best interests for the mother to be permitted to re-litigate parenting arrangements.  For the following reasons, I am not satisfied that it is.

6. In all of the circumstances, I am not persuaded that it is in X’s best interests for her to be exposed to further litigation about future parenting arrangements.  X should be given an opportunity to have a normal childhood and experience the love and attention which her parents each have for her under the 2015 final orders.

7. Any additional complications arising from the fact that the mother is now parenting two children can be accommodated in the context of the 2015 final orders.   Moreover, whilst X now has a half-sister in the mother’s home, she also has a half-brother in the father’s home.  The 2015 final orders are sufficiently comprehensive to allow X to continue to develop and maintain her relationship with both siblings. 

8. The procedural background to this matter outlined above reveals that this child has been the subject of almost constant litigation for over 9 years of her life thus far.  Moreover, it is clear that until these proceedings were issued, the 2015 final orders were working well.  Indeed, the mother’s own evidence supports this contention.

9. To the extent that Mr A has accepted a transfer to Town C, this was a decision taken in the context of the 2015 final orders having been made and in place for some time.  The evidence does not suggest that Mr A is required to work in Town C in the sense that if he did not accept the transfer, he would be unemployed.  Rather, it is clear that the mother and Mr A have made a choice to move to Town C.  That choice was made in the context of final orders being made in 2015 after protracted litigation.

10. As aptly submitted by senior counsel for the father, when two people have a child together, their life choices become constrained by the needs of the child.  Where those two individuals separate, those constraints might be imposed by orders which are made in the child’s best interests.  Clearly where circumstances change, the court has the discretion to alter such orders.  However, that discretion is limited by the principle in Rice & Asplund as discussed above.  Ultimately, like all parenting orders, an order to re-litigate parenting orders must only be made if to do so would be in the child’s best interests. 

11. If the mother’s application were permitted to proceed, X would once again be exposed to further litigation between the parties, would be required to participate in an assessment by a family consultant and undoubtedly, would become exposed to the ongoing conflict and stress surrounding the litigation process.

12. This would not, in my view, be in her best interests.

13. The 2015 final orders provided certainty for the parties in relation to their time with X.  A significant amount of time and effort went into the drafting of those orders which, as stated, are comprehensive in their terms.  

14. X clearly has a positive and meaningful relationship with both parents.  The 2015 final orders provide for her to maintain and develop that relationship.  Both parents clearly love and cherish X.  To the extent that the child is experiencing anxiety at the moment, further litigation is not going to assist to reduce that anxiety; in fact, ongoing litigation is more likely to exacerbate that anxiety. 

15. If X continues to experience anxiety, then her parents, in exercising their equal shared parental responsibility, need to work together to support her in dealing with whatever issues are giving rise to such anxiety.  They ought not be contributing to that anxiety by embroiling her in further litigation.

Conclusion

1. For each of these reasons, I am not satisfied that it is in X’s best interests to allow the mother to proceed with her application.  This type of ongoing litigation, is the very vice which Rice v Asplund seeks to mitigate.

2. I therefore order that the mother’s application be dismissed.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date:       2 September 2019