Terrill & Deighton (No 2)
[2023] FedCFamC2F 978
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Terrill & Deighton (No 2) [2023] FedCFamC2F 978
File number(s): MLC 9773 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 14 August 2023 Catchwords: FAMILY LAW – Rice & Asplund decision – recent consent orders for children to live with father in Melbourne and mother in Queensland – father alleges subversion of very recent orders – mother alleges emotional distress of children new fact and circumstance – decision that Rice & Asplund be determined at final hearing not on first return on papers. Legislation: Family Law Act 1975 (Cth), ss 60CA, 60CC Cases cited: Carriel & Lendrun [2015] FamCAFC 43; (2015) FLC 93-046.
Grace & Grace [2020] FamCAFC 286; (2020) FLC 93-996.
Marsden v Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1.
Rice & Asplund [1978] FamCAFC 128; [1978] FamCA 84; [1979] FLC 90-725; (1978) 6 Fam LR 570.
SPS and PLS [2008] FamCAFC 16; (2008) FLC 93-363.
Division: Division 2 Family Law Number of paragraphs: 29 Date of hearing: 24 July 2023 Place: Melbourne Solicitor for the Applicant: Mr I. Robertson, Robertson Legal & Conveyancing Lawyers Pty Ltd The Respondent: Litigant in person ORDERS
MLC 9773 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR TERRILL
Applicant
AND: MS DEIGHTON
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
14 AUGUST 2023
THE COURT ORDERS THAT:
1.The matter be adjourned to 19 October 2023 at 12pm for Directions Hearing at the Federal Circuit and Family Court of Australia at Melbourne before a Judicial Registrar via Microsoft Teams for the purposes of trial directions.
2.The parties are at liberty to provide these orders and the orders of 24 July 2023 and these reasons and the reasons of 24 July 2023 be made available to Child Protection and/or any investigating police officer.
AND THE COURT NOTES THAT:
A.The Court refused to accede to the Father’s application that the Mother’s application be dismissed on the principles of Rice v Asplund on a hearing on the papers and the Court considered but refused to dismiss the Father’s application on the principles of Rice v Asplund and each of those applications remain alive for final hearing as explained in the reasons.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION
At this point I must determine two different, but related, questions applying the principles of law known as the principles in Rice & Asplund [1978] FamCAFC 128; [1978] FamCA 84; [1979] FLC 90-725; (1978) 6 Fam LR 570. Hereafter in these reasons I will refer to those principles, including the many restatements of those principles including the subtleties of them as simply ‘Rice & Asplund’.
BACKGROUND
The general circumstances and background are as set out in last week’s decision dealing with the same children[1] and these reasons should be read together with that decision. The Father is 50 years old and the Mother 39 years old. The three children of the relationship are aged 11, 9 and 6.
[1] Terrill & Deighton [2023] FedCFamC2F 930.
At the end of providing ex tempore reasons determining the competing interim applications on the papers, the Father seeking a recovery order and a variation of existing orders, and the Mother seeking to reverse the residence orders recently made, and it being 5.20pm, I reserved my decision and reasons regarding further litigation and Rice & Asplund. I have now determined those questions and these are the reasons explaining my decision and orders.
APPLICABLE LEGAL PRINCIPLES
The principles of Rice & Asplund, long applying to courts dealing with children’s welfare, were stated by the then Chief Justice, Evatt CJ in Rice & Asplund (1979) FLC 90-725 at 78,905-6 as follows:
“The principles which in my view should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would invite endless litigation for change in an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that there was some changed circumstance which would justify such a serious step, some new factor arising, or, at any rate, some new factor which was not disclosed at the previous hearing which would have been material.”
In the Full Court of the Family Court of Australia (‘the Full Court’) decision, a ‘precedent’, also called an ‘authority’, known as Carriel & Lendrun [2015] FamCAFC 43; (2015) FLC 93-046 (‘Carriel & Lendrun’), whose statements about the law I must follow, or as lawyers say, ‘binds me’, the following principles and explanations were set out:
[57]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.
In Grace & Grace [2020] FamCAFC 286; (2020) FLC 93-996 Ainslie-Wallace J concisely set out a useful summary of the appropriate test or principles to be applied:
[11]The determination of whether there has been sufficient change in circumstances to warrant a re-opening of parenting issues can be determined as a preliminary issue or be considered at the same time as the hearing into that re-opening. The Full Court in Marsden & Winch continued and at [58] formulated the inquiry to first establish a prima facie case of changed circumstances to have been established; and secondly a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
In SPS and PLS [2008] FamCAFC 16; (2008) FLC 93-363 (‘SPS’) Warnick J, dealt with the issue of when and how the test of Rice & Asplund should be applied, that is at a preliminary stage or at a full hearing and observed:
[73]There are two matters of public policy that support the application of the threshold question even at the end of a hearing. Namely, that it is important for one judge not simply to substitute his or her conclusion for another judge, unless there has been a change of circumstance sufficient to justify that course. Secondly, albeit the particular litigation has run, if no such rule is even considered, in a general sense litigation will not be discouraged.
[74] In summary:
• If applied as a preliminary matter it may achieve all its purposes; and
• The rule in Rice and Asplund is generally expressed – as a rule to be applied as a preliminary matter;
• If applied at the end of a full hearing of parenting issues, the rule cannot achieve all its ends, but can achieve some and ought still receive consideration. However, its force may be diminished.
However those principles must be applied in the context of subject to the principles of Part VII of the Family Law Act 1975 (Cth) (‘the Act’). The most important of those provisions is section 60CA of the Act which is as follows:
60CAChild's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In determining what orders are in a child’s best interests I must apply the primary and additional considerations of sections 60CC(2) & (3) which are as follows:
60CC How a court determines what is in a child's best interests
…
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
…
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Hence at all times I am guided by the principle that I must regard the best interests of the children as the paramount consideration.
Application of legal principles to the facts of this case
Until Christmas day of 2022 both parents and the children had lived in Melbourne for the entirety of the children’s lives. On 8 December 2022 consent orders were made bringing to an end protracted litigation in this court about the children’s living arrangements. The orders provided for the children to live with the Father in Melbourne and travel to spend time with the Mother during each school holidays in Queensland, their mother then proposing to move to Queensland. She then moved to Queensland on Christmas Day of 2022. By the orders of 8 December 2022 the children were with their Mother on Christmas Day and travelled with her to Queensland, and she was to commence her life in Queensland, but the children were to return after a couple of weeks to Melbourne to spend the balance of the school holidays with the Father and effectively commence living in his full time care thereafter.
Children return after first post-orders school holidays
It is common ground that the children did return to Melbourne to commence living in the Father’s care during the Christmas school holidays in January 2023, and on the Father’s case returned a number of days late and only after the Mother had been given a “nudge” by a strong letter from the Father’s solicitor. On the Mother’s case the delay was due to the airline cancelling the flight and then, that the children returned in great distress and upset and vehemently and emotionally expressing their opposition to returning to Melbourne to live with the Father.
The children return after the second post-orders school holidays
It is common ground that the children travelled to Queensland for the first term or Easter school holidays and returned on the due day. The Mother’s case is that the children returned but again, in great distress and upset and expressing their opposition to returning to Melbourne to live with the Father.
The children don’t return after the third post-orders school holidays
It is common ground that the children travelled to Queensland for the midyear or July school holidays and have been retained by the Mother and not turned pursuant to the existing orders. The Mother’s case is that she was unable to have the children comply with her directions to cooperate with her to return to Melbourne and that the children were again in great distress and upset and expressed their opposition in returning to Melbourne to live with the Father.
Father raises Rice & Asplund against Mother’s application
The Mother was represented by solicitors at the time of the 8 December 2022 final orders. In these proceedings she is a litigant in person.
The Father’s solicitor raised Rice & Asplund in regard to the Mother’s application to vary the 8 December 2022 orders so that the children lived with her in Queensland and spent school holiday time with the father in Melbourne. The Mother did not raise Rice & Asplund principle in regard to the Father’s application. But I did. On the interim hearing (the week before last) on the papers, I determined that I would not, on an interim basis, vary the 8 December 2022 orders.
Mother asserts changed circumstances
The Mother made submissions that the children’s emotional distress and upset upon being returned to live in Melbourne were the basis of the changed circumstances sufficient to justify re-litigation. In particular, she made submissions that the child X, in early 2023 and more recently, threatened to kill herself if she was made to return to Melbourne.
Potential for systems abuse of multiple interviews
I am concerned that during 2022 the children were interviewed by professionals, including the family report writer, on at least five occasions, and were clearly exposed to and aware of the conflict between the parents as to where they would live. The principles of Rice & Asplund are an endeavour to prevent the repetition of this potential harm to children unless there is very good reason to do so.
THE FATHER’S CASE
The Father’s case, in support of his application on an immediate and at final hearing basis, is to vary the children’s spend time orders so that all school holiday time should be within approximately 200 kilometres of Melbourne and not in Queensland. Such orders are sought on the basis that the Mother would not comply with the existing orders to return the children at the conclusion of the school holiday time. The Father alleges that the Mother entered into the 8 December 2022 final orders in “bad faith”, that is, that it was her intention to subvert those orders by relying on the children’s emotional upset to not return the children to Melbourne and retain them in Queensland to live with her. He alleges at least a profound part of her motivation was her new relationship with someone living Queensland. The mother denies so acting.
On the Father’s case the lateness and trouble about the Mother returning the children in January 2022 and the Mother’s failure altogether to return the children after the July 2023 school holidays demonstrates that at the time of making the 8 December 2022 orders the Mother did not intend to comply with them and does not respect court orders but expects the Father to do so when it suits her.
On the Father’s case the changed circumstances sufficient to justify the re-litigation by his application, but not the Mother’s, is the Mother putting into effect, subsequent to the orders, her “bad faith” or ulterior motive of subverting or thwarting the 8 December 2022 final orders demonstrated by the January 2023 episode of trouble with the children returning and the July 2023 episode of the children not returning at all and the children’s exposure to the trouble and stress of those circumstances.
The limited nature of the changes sought by the Father, being supportive of the central pillars of the orders and reactive to what he says is the Mother’s subversion of, and non-compliance with the orders, may not actually invoke the application of Rice & Asplund[2]. It cannot be contended that the Father’s case is without merit. At a final hearing his case and the Mother’s would be put to the test.
[2] See the discussion in SPS & PLS (2008) FLC 93-363, Warnick J, at [48 (v)] and [83].
On an interim hearing on the papers when considering the Rice & Asplund question in regard to the Father’s application for variation of the orders, I must take his evidence at its highest or accept his evidence. I am satisfied that there are sufficient changed circumstances to warrant the Father pursuing the variation of the orders that he seeks, notwithstanding the stress and potential harm to the parties and to the children of further litigation. It was sensibly and properly conceded by the Father’s solicitor advocate that to determine the variation that he seeks as a final order would require a final hearing. A final hearing would likely require cross‑examination the parties and examination of motivations and circumstances.
The Mother points to what she says is the emotional stress and unhappiness of all of the children upon returning to Melbourne to live with the Father against what she says are their expressed wishes. The expressed wishes and desire of the children to live with the Mother was well known to the parties before the 8 December 2022 orders and discussed in the first and second family report of Ms B, the family report writer. The expressed circumspection of the child X of spending regular time with the Father, let alone living with him, was well known and was discussed in the first and second report of Ms B. Hence, it could be said or argued that the later emotional upset of the children was likely, if not inevitable, and is not a new fact or circumstance.
The Mother has deposed to X telling her, in 2023, prior to her returning to her father and while staying in Queensland with her mother, that she would kill herself if she had to return to live with the father. The Mother asserted over the video link hearing that the child said the same thing recently when staying with her in 2023. The Mother did not specify that X had engaged in this conduct in recent filed material.
CONCLUSION AS TO RICE & ASPLUND ON THE MOTHER’S APPLICATION
The circumstances alleged by the Father bring the considerations of section 60CC including section 60CC(3)(d),(f) & (i) into sharp focus. The Mother’s account of the children’s distress is concerning. Her contribution to that distress is an issue. However, the circumstances that there will be a final hearing on the Father’s application and the Mother’s account of the extent of the children’s emotional upset and X’s statement to her, and the principles of Rice & Asplund being but a manifestation of the best interests of the children being the paramount consideration, compel me to determine that in this case the Rice & Asplund question and the best interests of the children will be best resolved at final hearing, not this preliminary hearing on the papers.
I am aware that deferring the determination of Rice & Asplund question to final hearing avoids or dilutes one of the important policy considerations of those principles, that is, the avoidance of exposing the children and the parents to the grief and stress of yet another round of litigation between the parents about the children’s living arrangements:[3]
[3] See the discussion in SPS & PLS (2008) FLC 93-363, Warnick J, at [74].
In those circumstances is not appropriate that I dismiss the Mother’s application for final orders to reverse the recent final orders without a full hearing.
I will make orders referring the matter to the docketed judicial registrar for trial directions.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 14 August 2023
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