Thompson and Hawkes
[2014] FCCA 390
•4 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| THOMPSON & HAWKES | [2014] FCCA 390 |
| Catchwords: FAMILY LAW – Rice and Asplund argument – determined as preliminary issue. |
| Legislation: Family Law Act 1975, ss.4, 69ZN |
| In the marriage of Rice and Asplund (1978) 6 Fam LR 570 SPS & PLS [2008] FamCAFC 150 |
| Applicant: | MR THOMPSON |
| Respondent: | MS HAWKES |
| File Number: | DNC 52 of 2011 |
| Judgment of: | Judge Harland |
| Hearing date: | 12 February 2014 |
| Date of Last Submission: | 12 February 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 4 March 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Farmer |
| Solicitors for the Applicant: | Withnalls |
| Counsel for the Respondent: | Ms Truman |
| Solicitors for the Respondent: | DS Family Law |
ORDERS
That the initiating application filed by the father on 2 September 2013 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Thompson & Hawkes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNC 52 of 2011
| MR THOMPSON |
Applicant
And
| MS HAWKES |
Respondent
REASONS FOR JUDGMENT
Introduction
Final orders were made by consent by Turner FM (as she then was, hereafter she shall be referred to as Judge Turner) on 27 June 2012. Those orders addressed several issues including shared parental responsibility and special days.
There was a two day hearing before Judge Turner. She delivered her reasons and orders on 31 July 2012.
On 2 September 2013 the father filed an initiating application seeking to discharge or vary three of the orders made on 27 June 2012 and three of the orders made on 31 July 2012.
On 15 October 2013 I directed that the matter be listed for a preliminary argument about whether or not the principle in Rice and Asplund should apply in this case to prevent the father from seeking further parenting orders. Neither party opposed this course.
Both lawyers prepared comprehensive written and oral submissions.
The father seeks to discharge three of the orders made on 27 June 2012 which are as follows:
a)Order 3. Where handover with respect to X does not occur at daycare/kindy/school, then unless otherwise agreed, the father shall collect X from and return her to the mother’s residence at the commencement and conclusion of any time spent with her;
b)Order 4. Each parent shall be permitted to have communication with X at all reasonable times when she is not otherwise in their care;
c)Order 6. Each parent be permitted to take X on an interstate or overseas holiday, provided that the time does not conflict with X’s birthday and that written notice of same is provided to the other parent not less than 28 days prior to departure, together with a written itinerary containing the dates of departure and return, and the address and telephone number of the place(s) where X shall be staying during holiday.
The father seeks to have handovers that do not take place at preschool or school take place at McDonald's (omitted) instead of the mother’s home.
In place of order 4 the father seeks an order that “the child to communicate with the parent with whom they [sic] are not living each Wednesday and Sunday between 5 and 7pm with the parent with whom the child living to instigate the telephone call.”
Order 6 would be overtaken by the new orders the father seeks for holiday time.
The father also seeks to discharge orders 4, 5 and 7 of the orders made on the 31 July 2012. They provide for:
a)Order 4. The child live that the mother;
b)Order 5. In summary the orders provide for the father to spend time with X on alternate weekends from Friday to Monday and alternate overnight;
c)Order 7. “That the father shall ensure that whilst child is in his care that the child attend any day-care, kindergarten, pre school, or school with child is enrolled unless the child is suffering a medical condition which is to be evidenced by certificate from the treating health professional.”
In place of these orders the father seeks final orders which provide for him and to have care of X on a week about basis during school term and half of the school holidays.
He also seeks interim parenting orders.
Legal Principles
The rule in Rice and Asplund is well-known. In the marriage ofRice and Asplund (1978) 6 Fam LR 570 the Full Court had to consider what principles should apply when a court is faced with an application to change an earlier parenting order. Evatt CJ said the following:
“The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order into the reasons for material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation… Change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that… There is some change circumstance which would justify such a seriousness step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.”
The trial Judge has a discretion as to whether to consider the Rice and Asplund principle as a preliminary issue or after a full contested hearing. In my view in the circumstances of this case it is appropriate to determine it as a preliminary issue as there is little by way of disputed facts. The issue is whether there has been a sufficient change in circumstances to justify this Court further hearing parenting issues.
It is important to bear in mind that the rule in Rice and Asplund is merely a manifestation of the best interests principle: see SPS & PLS [2008] FamCAFC 150 and Marsden & Winch [2009] FamCAFC 152 at [47].
In Marsden & Winch the Full Court stated at [58]:
“Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3) If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.”
This is a useful structure to use in this case.
In Miller & Harrington (2008) FLC 93-383 the Full Court pointed out that section 69ZN of the Family Law Act1975 requires the court to consider the impact of proceedings on children. The potential impact is obvious as in this case it would most likely require another family report and the stress of further litigation is likely to be felt by both parents and picked up on by X.
I have read and considered the other cases referred to in the written submissions supplied by both parties.
Evidence before the Court at the final hearing
It is necessary to consider the evidence which was before the Court when the consent orders were made. My attention was drawn to the family report and the reasons for judgment.
Turning to the family report first, the following issues were addressed:
a)X has been living in a shared arrangement with her parents which she was developmentally too young for;
b)Handovers were particularly problematic for X;
c)The father talked about X being all he had. The mother expressed concern that the father was smothering X;
d)The report writer identified a concern that it was the father who had difficulties separating from X and that X reacts to his distress. The father was also clingy towards X and often carried her on his hip rather than letting her walk;
e)The father actively encouraged X to miss day-care so he could spend more time with her, disrupting X’s routines and creating “unnecessary resistance to the mother’s parenting at times;”
f)The family report writer notes that at X’s age family law literature suggests that she should not be in an equal time arrangement with her parents “even if they were lacking completely in conflict over her care;”
g)The family report writer recommended that the father complete a parenting course and engage in therapy to acquire strategies to address his separation anxiety to ensure that X is no longer “disturbed behaviourally by it.” There is no suggestion that in the report that the completion of therapy would be a precursor to increase the father’s time. This is clear from the recommendations. The family report writer recommended that X spend time primarily in one parent’s care. He further recommended that once she started school she could spend up to half the school holidays with the other parent.
The judgment addressed the following issues:
a)Judge Turner placed weight on the report writer’s opinions about shared care. She found that an ongoing shared care arrangement would not be in X’s best interests as X would be exposed to the father’s “deep seated insecurities regarding his time”. She expressed concern that if the father did not address his separation anxiety issues that he might cause X to miss preschool and school;
b)The parents have very different parenting styles. She gave weight to the report writer’s opinion that X needs consistency of routines across households which can only be achieved if she lives predominantly in one household;
c)The parents have low communication which is a factor against shared car;
d)The father’s health;
e)Judge Turner concluded that it would be in X’s best interests to spend time with the father on alternate weekends and alternate Wednesdays as that would enable “the child’s bond and meaningful relationship with the father to be maintained and nurtured”. She further noted that it would allow X to spend time with the father’s extended family as well. She specifically found that this time was substantial and significant time;
f)Judge Turner also found that it was necessary to make an order requiring the father to ensure X attends day-care, preschool and school;
g)At the hearing the father was agreeable to attending therapy provided the mother also went to therapy. Judge Turner found that the father was oblivious about the impact of his behaviours on X and that his behavioural issues have been long term.
Has there been a prima facie case for the change in circumstances?
The main changes that the father points to are:
a)The father has completed therapy;
b)X now being of school age;
c)The father being in a new relationship with Ms K who has two children.
There are other changes the father’s seeks which cannot be described as being due to a change.
The order with respect to telephone time is not addressing a change in circumstance but is seeking specific times where none were specified previously. The change the father seeks is not due to any change in circumstance. It is clear that telephone contact is taking place.
It also cannot be said that there is a change of circumstances which justifies changing the handovers from being at the mother’s home if not at school to a public place. I am not persuaded that any change to this order is justified.
Order 7 of the orders made on 31 July 2013 was addressed comprehensively in Judge Turner’s judgment. There is nothing in the father’s evidence that points to any justification for re-examining this issue.
The last paragraph of Judge Turner’s judgment is significant. It reads:
“The change in the living arrangements for X, the requirement for the father to undergo a parenting course and the need for the father to attend therapy will hopefully minimise the mother’s future exposure to the self centred dominance of the father and provide the father with an opportunity to better parent and enjoy his time with X.”
Judge Turner’s judgment makes it clear that the purpose of ordering the father to attend therapy and complete a parenting course was not intended to be a precursor to the father being able to spend more time with X. It was designed to make the time the father has with X healthier for both of them.
The father annexes a psychologist report. For completeness I note at page 6 of the report Ms H notes that the father’s test results indicated that the father presented with “a high positive impression, making the development of insight into your behaviour particularly problematic.” This does not suggest that the father’s issues have resolved.
The father argues that there has been a significant change in circumstances because of X’s age, there being significant developmental differences between a child of 3 and a child of school age. Richard Chisholm and Jennifer McIntosh’s article “Cautionary notes on shared care in conflicted parental separation” and McIntosh’s Report on parenting arrangements post separation were tendered as Exhibit B at the final hearing. I infer from this that Judge Turner was well aware of the developmental issues concerning young children and the issues surrounding when shared care arrangements work for children and when they do not. There is nothing in Judge Turner’s judgment to suggest that she was not cognisant of these issues when deciding not to provide for any increase in the father’s time once X started school.
Neither set of 2012 orders deal with time during the school holidays except for interstate and overseas trips. The family report writer made a recommendation about school holidays stating that the father could have up to half the of the school holidays once X was at school. Both parties were legally represented at the final hearing. They had the opportunity to press for orders with respect to school holidays. Given it was referred to in the family report it cannot be said that it was not an issue which was considered. The terms of the orders made by Judge Turner contemplate X going to school as it refers to daycare/preschool/school.
In those circumstances, whilst it may be preferable to have orders in place with respect to school holidays it is not an issue that arises since the hearing and there has not been a change of circumstance since the hearing.
The only circumstance which can fairly be said has arisen since the hearing is the father’s relationship with Ms K and the fact that the father is now living with Ms K and her two children who spend time with Ms K and their father on a week about basis. The fact that a parent re-partners is not considered a major issue as defined in section 4 of the Family Law Act1975. It is beyond doubt that the father’s relationship is a new circumstance but is that sufficient to justify a further hearing? It is an overstatement to describe Ms K’s children as new siblings for X. This is not the case. It is not unusual for parents to re-partner and for parents and children to have to adjust to living in a blended family. The issue here is whether or not that new circumstance justifies a fresh consideration as to whether or not the father’s time with X should be increased.
I acknowledge that the evidence is untested. The father says that communication has improved. He says X is settled. The fact that things are going well is an indication that the orders are working, not that the orders should be changed.
Further proceedings will likely involve X having to participate in a further family report. There will be further uncertainty and the parties are likely to be stressed emotionally and financially by further proceedings.
There is nothing in the evidence before me that suggests that it is likely, even placing the father’s evidence at its highest, that further proceedings are likely to lead to a significant change in the parenting orders.
As I indicated during the course of oral submissions, if the parties agree on orders addressing school holidays I am prepared so consider those orders in chambers but for the reasons I have given the rule in Rice and Asplund applied in this case is clear that further proceedings would not be in X’s best interests. For these reasons I dismiss the father’s application.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 4 March 2014
Key Legal Topics
Areas of Law
-
Civil Procedure
-
Family Law
Legal Concepts
-
Jurisdiction
-
Standing
0
2
2