Terry & Terry
[2023] FedCFamC2F 1674
•20 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Terry & Terry [2023] FedCFamC2F 1674
File number: MLC 10595 of 2023 Judgment of: JUDGE CHAMPION Date of judgment: 20 December 2023 Catchwords: FAMILY LAW – Parenting – Rice & Asplund – Preliminary hearing as to whether parenting orders ought to be reconsidered – No change of circumstances that would justify embarking on a second contested parenting hearing – Application dismissed – Discrete issue as to dispute as to choice of school referred to separate hearing Legislation: Evidence Act 1995 (Cth) s. 131
Family Law Act 1975 (Cth) ss. 64B, 65DAC
Cases cited: Cameron & Brook [2018] FamCAFC 175
Defrey & Radnor [2021] FamCAFC 67
Edwards & Edwards (2006) FLC 93-306
King & Finneran (2001) FLC 93-079; [2001] FamCA 344
Mahoney v Dieter [2020] FamCAFC 88
Marsden & Winch (2009) 42 Fam LR 1; [2009] Fam CAFC 152
Rice & Asplund (1979) FLC 90-275
Searson & Searson (2017) FLC 93-788
SPS & PLS (2008) 217 FLR 164
Division: Division 2 Family Law Number of paragraphs: 75 Date of last submissions: 15 December 2023 Date of hearing: 15 December 2023 Place: Melbourne Counsel for the Applicant: Mr Bennett Solicitor for the Applicant: ECG Legal Counsel for the Respondent: Mr Moore Solicitor for the Respondent: Duffy and Simon ORDERS
MLC 10595 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR TERRY
Applicant
AND: MS TERRY
Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
20 DECEMBER 2023
THE COURT ORDERS THAT:
1.Subject to Orders 2 to 4, the initiating application is dismissed.
The school dispute
2.The Father file an outline of argument, a consolidated affidavit and any further affidavit in support of the orders he seeks as to the school dispute on or before 4:00 pm on 8 January 2024.
3.The Mother file an outline of argument, a consolidated affidavit and any further affidavit in support of the orders she seeks as to the school dispute on or before 4:00 pm on 12 January 2024.
4.The matter is listed for a hearing at 10:00 am on 18 January 2024 (on an estimate of 1 day).
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 CHAMPION:
INTRODUCTION
This dispute concerns whether there has been a change in circumstances and if so whether it would be in the best interests of the children to revisit final parenting orders made for two children: X (now aged 10) and Y (now aged 8).
On 9 October 2018, the Court made final consent orders for X and Y. There were orders (among others) that:
(a)the parents have equal shared parental responsibility;
(b)the children live with the Mother; and
(c)the children spend time with the Father every second weekend (Friday to Monday), on Thursday evenings and on a “week about” arrangement during school holidays and on special occasion time.
The Father contends that there are changed circumstances since the making of the final parenting orders because (among other matters) the Mother and her partner have “interfered and prevented the children from developing and maintaining a meaningful relationship with the Father”: Father’s Outline of Case, [4].
The Mother opposes the reopening of the parenting dispute on the basis of the principles in Rice & Asplund (1979) FLC 90-275.
Pursuant to orders of the Chief Judge, on 15 December 2023 I heard a threshold hearing as to the Rice & Asplund issue.
For the reasons set out below, I have decided that the Father has not established a prima facie case of changed circumstances that would warrant embarking on a contested parenting hearing as being in the children’s best interests.
There is a presently unresolved dispute for 2024 (and beyond) as to the children’s choice of school, which I regard as a discrete issue. Although I have found the changed circumstances do not justify embarking on a contested parenting hearing about the children’s living arrangements, the school issue still needs to be resolved.
This judgment may assist the parties to resolve the school dispute. If it does not, as the dispute about the children’s school in 2024 is urgent, I have relisted the matter on a truncated timetable for final hearing on 18 January 2024.
My reasons follow.
The competing applications
On 10 August 2023 the Father filed his initiating application seeking to reopen the matter previously finalised on 9 October 2018.
He seeks orders for a residence reversal and that the children spend time with their Mother each alternate weekend and Wednesday after-school, on a “week about” arrangement during school holidays and on special occasion time. In practical terms, he seeks to reverse the current orders as to the live with and spend time with arrangements. He seeks an order for equal shared parental responsibility which as to that issue would not vary the existing orders.
As noted, the Father’s application, as amended on 2 November 2023, exposes an urgent dispute as to the children’s school in 2024.
The Mother lives in Town B on Region C. In early 2024 the Mother is moving from Town B to Suburb D, near Suburb E. The Father lives in Suburb F, in metropolitan Melbourne. As a result of the Mother’s move, the parents will live closer to one another: 45 km apart, not 90 km apart.
Both X and Y currently attend G School in Town H.
A notation to the orders of a Judicial Registrar made on 18 September 2023, following the Father’s commencement of this application, sets out that from Term 1 2024 the Mother proposes that X, who will be in Grade 6, attend J School, Town K and Y attend L School. That is, the Mother proposes that each of X and Y will change schools and attend a school closer to her new home (and as it happens) closer to the Father’s home.
The Father, by his amended initiating application dated 2 November 2023, seeks final orders that X attend M School (a high school) from the commencement of the 2025 school year and that Y attend M School (a primary school) from the commencement of the 2025 school year. The final orders as to schools that the Father seeks are premised on the Father being successful in his residence reversal application. Each of the M schools are close to his home and a zoned school for where he lives.
As to schools, the Father seeks interlocutory orders that X and Y continue to attend their existing school at G School, Town H for the 2024 school year. He says that it is not in the best interests of the children to have “potentially two changes of schooling”: Father’s Affidavit, 24 November 2023, [66]. He says an available bus service means the children’s travel time between J School (the Mother’s proposed 2024 school for X) and L School (primary school) (the Mother’s proposed 2024 school for Y) are approximately the same as they would be if the children remained at G School in Town H.
Legal principles
As to whether in a particular case the court should be willing to embark upon another hearing concerning the child, the Full Court in Marsden & Winch (2009) 42 Fam LR 1; [2009] Fam CAFC 152, [50] set out three matters 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.
In Defrey & Radnor [2021] FamCAFC 67, a Full Court held at [22]:
The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the 2015 orders and secondly, to assess whether or not the Father had established that these changes are sufficient to provoke a new inquiry, or put in another way, whether the Father has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child’s best interests.
In Defrey (at [16]), the Full Court saw no substantive difference between its statement of the relevant principle and the relevant matters identified in Marsden.
In Defrey (at [19]), the Full Court summarised the principle in Rice & Asplund as a manifestation of the best interests principle. In Edwards & Edwards (2006) FLC 93-306, 81, 160 the Full Court explained that the principle was a safeguard against “the damage which may be caused to children by endless litigation which may, directly or indirectly, expose them to conflict and the potential abuse of a child by subjecting the child to repeat expert interviews”. I must focus upon whether a change or changes in circumstances in the current case outweighs the negative impact of reopening litigation.
On the threshold hearing, the court, and the parties, proceeded on the basis that there was no cross-examination. As a result, the Applicant Father’s evidence is to be “taken at its highest”: Defrey, [21], although this does not mean that I should ignore other evidence. After observing that the Father’s evidence must be taken at its highest, the Full Court in Defrey (at [21]) immediately continued “it is not only the Father’s evidence that is considered”.
The nature of the changes being sought to the orders is also relevant
The nature of the changes being sought to the orders is also relevant. Where a party seeks wholesale changes to the orders, the party seeking to re-open the parenting dispute will need to persuade the Court that changes of circumstances are of “sufficient gravity” to warrant wholesale re-litigation. In SPS & PLS (2008) 217 FLR 164, Warnick J held at [83]:
[…] the rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes.
In Mahoney v Dieter [2020] FamCAFC 88 at [49] the Full Court held:
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 […] 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.
[Emphasis added]
BACKGROUND
As noted, on 9 October 2018 final parenting orders were made by consent as to X and Y.
On this application, the Father read two affidavits made on 24 November 2023 and 8 December 2023. The annexures to the Father’s affidavit dated 24 November 2023 T-1 to T-15 were tendered. Annexure A of the Father’s affidavit dated 8 December 2023 was tendered. The Mother read an affidavit made on 1 December 2023.
In addition, the parties adduced further evidence by way of a joint tender bundle which comprised certain communications as to matters in dispute in 2023 and a letter of the Department of Families, Fairness and Housing (DFFH) dated 17 August 2023. Following the trial, by consent, a further letter dated 25 April 2023 from the Mother’s solicitors to the Father’s solicitors. The letter was in response to the Father’s proposal for
CONSIDERATION
Has the Father established a case to be answered of changed circumstances which warrants re-opening the parenting dispute?
The Father sought to rely cumulatively on a number of factors. Where a number of changes are relied upon, I must consider the cumulative effect of the changes: King & Finneran (2001) FLC 93-079, [62]; [2001] FamCA 344.
Past circumstances, including the reasons for the previous orders and the evidence upon which they were based
In October 2018, the parties achieved consent at an early stage of the proceedings. There was no contested hearing. There was limited evidence before me as to the circumstances in which the order was based. In Searson & Searson (2017) FLC 93-788, at [27] the Full Court noted that the evidence upon which “those orders were founded needs to be compared and contrasted” with the current evidence.
The Mother had a “divorce party” in 2017, in which, to some extent, she involved the children in the celebration of her divorce from the Father, an event which was unlikely to support their relationship with him: Father’s Affidavit, [15]. On 9 November 2017, the Mother, in her text message contact details named the Father as “Mr Terry the Fuckwit”: [16]. The children at that time were not old enough to read. In early 2018, the Mother’s partner, Mr N, referred to the Father as a “faggot”: [18]. These events occurred 15, 11 and 7 months respectively before the final orders. They cannot constitute a change in circumstances since the final orders were made. These events establish that there was a significant level of inter-parental acrimony before the final orders were made.
The passage of time and the fact that the children are older
X and Y were very young children, just 5 and 3 years old at the date of the final orders. X had just started primary school. X and Y are now 10 and 8 years old. On one view the passage of time is part of the ordinary exigencies of life and does not itself establish changed circumstances. To some extent, the fact that the children are older (in X’s case, nearing the end of primary school) is a change of circumstance since 2018. X is able to express her views in a way she was not in 2018.
School
As outlined above, there is a current dispute as to choice of school. One way in which the Father submitted that the dispute was relevant is because the Rice & Asplund principle rests on protecting children from the potential harm of exposure to the conflict of litigation. If there is to be litigation in any event because of the dispute as to choice of school, the children will not be protected from litigation by preventing a general reopening of the parenting enquiry.
Although the existing orders make no explicit order as to education, the children’s education, and issues as to choice of school, were issues within the framework of the orders made on 9 October 2018 as issues within the scope of the equal shared parental responsibility order. The equal shared parental responsibility order is taken to require each of the parents to make a genuine effort to come to a joint decision about education issues: s. 65DAC(3)(b). There is a present dispute about the children’s 2024 school (and school beyond 2024). In substance, because of the dispute, each parent seeks to vary existing orders so that the children attend a school of her or his nomination.
The school dispute can be dealt with as a discrete and standalone issue. While as matters presently stand, the resolution of the school dispute is likely to involve some further litigation and exposure of the children to the conflict of that litigation, the children’s exposure and risk of harm as to litigation about that discrete issue is of a significantly lesser grade or magnitude than the risk of harm that would be occasioned by the reopening of the entire parenting dispute. The school dispute is confined and concerns a single issue. Neither party has (as yet) contended that expert evidence will be required for its resolution. It does not appear that the children would need to be interviewed by experts or a family report prepared. For those reasons, I place limited weight on the school dispute as a changed circumstance warranting reopening the parenting dispute as to living arrangements.
New siblings
Both parents have had children with new partners in post-separation relationships since the final order were made. It was not explained why this change in family structures, without more, constituted a material change of circumstances or why new siblings (on both sides) gives rise to a likelihood that existing orders will be varied in a significant way as a result of a new hearing.
Geography and changed living circumstances
To some extent, because it appears that the parties will live closer together from 2024, that change may support the children spending more time with the Father. Distance will be a reduced barrier to the children spending increased time with him. Further, when the orders were made the Father was living with his parents in Suburb E. He now lives with his wife in Suburb F. His changed, and independent, living circumstances may better support the children spending more time with him. The Father did not, however, frame his case on the basis that the fact that the parents were living closer together or that he had changed living circumstances warranted a reopening of the parenting orders. Limited weight can be placed on these issues.
Family violence
The centrepiece of the Father’s submissions as to why reopening the parenting orders was justified was because “family violence perpetrated by the Mother and the Mother’s partner since separation has interfered and prevented the children from developing and maintaining a meaningful relationship with the Father”: Father’s Outline, [4].
As to this issue, the Father relied on his affidavit made on 24 November 2023, in particular, at paragraphs [16]–[19] and [32]–[42]. Each of the references below is to the Father’s affidavit made 24 November 2023.
I have already noted that there was evidence of acrimony between the parents before the final orders were made.
Since the final orders, on 4 December 2018, on the phone to the children heard the Mother’s partner, Mr N, refer to him as a “faggot”: [17].
Since “mid-2021” the Father deposes that he has observed “X and Y look visibly frightened for the majority of our FaceTime calls.” He has asked the children if anything is wrong but the children have not responded: [32]. Specifically, the Father says that he has asked Y on calls: “is everything okay?” Y says: “ask X?”. X says: “Nothing happened.”
In late 2022 there was a dispute between the parents about X going to a birthday party and the Mother referred to the Father as a “narcissist”: [33].
Since late 2022, the Father has noticed that X and Y either refuse, or are hesitant to, hug or talk to the Father in the Mother’s presence: [34]. At [36] the Father says:
I do not know what the children are being subjected to in [the Mother’s] house or what they are being told about me… to cause the reaction above. I am worried about the psychological harm the children may suffer if it continues.
The Father says that school holidays are “really good” and the children are their “warmed up selves for that extended period”: [38].
The Father expressed a concern that Y had been signed up to a sports team under the name “Y N” and had a jumper with the surname N printed on it although Y shares the Father’s surname, not the surname of the Mother’s new husband: [40]. The Mother deposed that this was at Y’s request because he thought that “Terry” was a name. The Father responded that he was not consulted and did not consent to this.
The Father concludes (at [41]) that he is concerned that the:
“[…] children are at significant risk of psychological harm due to being exposed and actively involved in the parenting disagreements and actions by [Ms Terry] and [Mr N] to undermine their relationship with me.”
The Father says that “despite [these] issues” the parents “have been able to be flexible and have instances of positive coparenting”: [44]. By agreement between the parents, the children spent significantly more time with the Father during the COVID-19 lockdowns, and in fact, by agreement, during the COVID-19 lockdowns, spent more than 50% of their time with him: [44].
The tender bundle
The parties agreed that I should receive into evidence a joint tender bundle.
The bundle included communications in connection with an attempt to negotiate a settlement as to the current dispute. The parties consented to the adducing of that evidence: Evidence Act 1995, s. 131(2). I have not been significantly assisted by the documents in the tender bundle as to negotiations about the current dispute. Parties adopt positions in negotiations for reasons which may not be visible to the court. I have not drawn any inference that either party was not negotiating in good faith.
The correspondence as to the current dispute in 2023 is the first time the Father raised the concern that the Mother and her partner were undermining the children’s relationship with him.
The DFFH Report
A report of the DFFH dated 17 August 2023 was included in the bundle. The DFFH document noted that a report made to DFFH alleged that the children have been the subject of ongoing emotional abuse for several years in terms of derogatory comments from the stepfather, Mr N, and from their Mother, regarding the children’s relationship with their Father. The DFFH wrote that information was “concerning” but did not “constitute significant risk of harm.” The DFFH wrote:
Follow up with the children school was unable to find any concerns and indicated that the parental group are all involved when picking the children up and it appeared as though this was an amicable arrangement.
[Emphasis added]
The DFFH concluded that “concerns and matters around care and contact can be addressed in the Family Court arena.”
Determination as to Rice & Asplund
Taking the Father’s evidence at its highest and considering the matters he raises cumulatively, there has been some changes of circumstances as to each of the following: the children’s ages, the passage of time, the reduced distance between the parents’ residences and changed living arrangements, new siblings and a school dispute. I am not persuaded that the Father has made good a prima facie case the Mother or her partner are undermining the children’s relationship with him.
As to whether the changed circumstances the Father has established justify the re-opening of the parenting dispute, I have not been persuaded that the changes are of such magnitude to warrant the wholesale re-opening of the parenting dispute which the Father seeks by his claim for a residence reversal (SPS, Mahoney, above). As the Full Court noted in Mahoney, “the nature of the change in circumstances needed to be of sufficient gravity to warrant the wholesale re-litigation of the [children’s] living arrangements.” The changed circumstances on which the Father relied, even cumulatively, are not of sufficient gravity to warrant that wholesale re-litigation of the children’s living arrangements.
In this case, before the final orders were made there was evidence of conflict in the relations between the parents.
Since the final orders, the Father emphasises that he has limited visibility as to what happens in the Mother’s home. On what he can observe, he is concerned about the children’s hesitancy in communicating with him by FaceTime, which he submits is evidence of the Mother and her partner interfering and preventing the children from developing and maintaining a meaningful relationship with him.
Judging the children’s hesitancy during FaceTime calls on its own terms, that hesitancy is not a matter I afford great weight. The children have never stated to the Father that anything has happened. There is speculation in the Father’s evidence that the children’s hesitancy masks an underlying issue. I am not prepared to draw such an inference that the Mother is denigrating the Father, and that any denigration has got worse since the final orders, from the children’s hesitancy during FaceTime calls.
Even if the children’s hesitancy masks an underlying issue, there is countervailing evidence of the Mother supporting the relationship. The Father deposes to a cooperative and child focused parenting relationship during COVID-19. On his own evidence, both parents have been able to be “flexible and have instances of positive coparenting.” Further, there is evidence of a positive relationship between the children and the Father. The children’s positive interactions with the Father on weekends and, particularly when they are “warmed up” on school holidays, is a contra-indicator to any argument that the Mother (or her partner) is undermining the children’s relationship with him.
In my assessment, the Father’s evidence of actions said to undermine the children’s relationship with him do not disclose that matters have significantly worsened since the final orders. Indeed, arrangements during COVID-19 where the children spent more than 505 of their time with him disclose a trajectory of improvement. Levels of interparental conflict appeared more significant before the final orders were made. There is not a sufficient reason to warrant re-opening the parenting dispute as to the children’s living arrangements.
I assess the school dispute as a discrete issue. It can be dealt with without exposing children to the potential conflict of reopening the litigation as to the children’s living arrangements and exposing the children to expert interviews (Edwards, above).
Balancing the various factors, and considering the children’s best interests as the paramount consideration, any changed circumstances are not sufficient to outweigh the potential detriment caused to the children by the wholesale re-opening of the litigation.
The school issue
There remains the unresolved issue as to the children’s schools. I was referred to Cameron & Brook [2018] FamCAFC 175.
Although I will refuse the Father’s application to embark on a second contested parenting hearing as to living arrangements, given the scope of the Father’s current application I have the power (and the obligation) to deal with the school dispute as a discrete issue, which is an issue within the scope of that application.
The Father’s application having been made and the court’s jurisdiction regularly invoked, I have power to make a parenting order as defined under s. 64B(1) of the Family Law Act 1975 (Cth). A parenting order may vary a previous order: s. 64B(1)(b). Further, s. 65D(2) sets out a specific power to make a parenting order that “discharges, varies, suspends or revives some or all of an earlier parenting order”. The authority to determine where X and Y go to school is an aspect of parental responsibility. In Cameron a Full Court held at [33]
Those aspects of parental responsibility are the subject of an existing order. However there is a present dispute about those aspects arising some three years after those orders were made. The Mother seeks to vary an aspect of the relevant order. The Court has both jurisdiction and power to determine that question if the parties cannot agree upon it for themselves.
[Emphasis added]
The Full Court in Cameron noted the power to vary an existing order was not a Rice & Asplund issue.
It is not the case that once an order for equal shared parental responsibility is made any disputes about major long-term issues are “left to one party’s will suborning that of the other with no role for the court”: Cameron, [34]. Presently, as to schools, in the absence of an agreement each party wishes to suborn the will of the other party.
The school dispute is not an attempt to re-agitate issues previously agitated, addressed and settled by the consent orders made on 9 October 2018. I characterise the issue as to choice of schools as a dispute arising within the scope of the existing orders. The fact that I have declined to permit an application to proceed to re-open the substantive parenting proceeding because of the principle in Rice & Asplund does not dispose of the school dispute, which needs to be resolved in the children’s best interests.
Because the school dispute is about (at least in part) where the children will go to school in 2024, the matter is urgent. As I indicated to the parties when the matter was before me as to the Rice & Asplund issue on 15 December 2023, because of its urgency, I am prepared to list any residual dispute as to choice of school on 18 January 2024.
To be clear, neither party is shut out from pursuing any dispute as to school, because the Father has raised the issue in the broader context of an application which will be dismissed because the Mother’s arguments as to Rice & Asplund have been upheld. It appears to me that neither party ought unilaterally have X and Y attend a school of his or her choice without the agreement of the other parent.
If possible, it appears to me in the children’s best interests that this dispute is dealt with before school resumes. The end of year break creates scheduling challenges.
I propose to make the following orders for a truncated timetable as to the school dispute:
(a)The Father file an outline of argument, a consolidated affidavit and any further affidavit in the support of the orders he seeks as to the school dispute on or before 4:00 pm on 8 January 2024;
(b)The Mother file an outline of argument, a consolidated affidavit and any further affidavit in the support of the orders she seeks as to the school dispute on or before 4:00 pm on 12 January 2024;
(c)The matter be listed for a hearing at 10:00 am on 18 January 2024 (on a 1-day estimate).
Consistent with the recognition of the detriment to the children of exposing them to the potential harm caused by the litigation itself, I propose to deal with the school dispute on a final basis on 18 January 2024.
It is appropriate that both parties reconsider their positions as to the school dispute in light of the ruling I have made as to Rice & Asplund.
If (for whatever reason) the parties do not wish the proceeding as to the school dispute to go ahead in accordance with this schedule, or it is not realistic to proceed as I propose, I request that the parties jointly contact my chambers not later than 4:00 pm on 12 January 2024.
CONCLUSION
I will make orders accordingly.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 20 December 2023
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