Timms and Arnold
[2011] FMCAfam 153
•1 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TIMMS & ARNOLD | [2011] FMCAfam 153 |
| FAMILY LAW – Rice v Asplund point taken by respondent – all matters except one raised by applicant in previous proceedings – consideration of application of Rice v Asplund. |
| Family Law Act 1975 |
| Rice & Asplund (1979) FLC 90-725 SPS & PLS [2007] FMCAfam 907 |
| Applicant: | MR TIMMS |
| Respondent: | MS ARNOLD |
| File Number: | MLC 759 of 2009 |
| Judgment of: | Burchardt FM |
| Hearing date: | 1 February 2011 |
| Date of Last Submission: | 1 February 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 1 February 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Andrews |
| Solicitors for the Applicant: | Mirabellas Solicitors |
| Counsel for the Respondent: | Ms Agresta |
| Solicitors for the Respondent: | Pearsons Barristers & Solicitors |
ORDERS
Failing agreement between the parties, the child [X] born in 1995 be enrolled at [omitted] Secondary College.
The Orders made by Federal Magistrate Phipps on 31 August 2009 otherwise remain in full force and effect.
All extant applications are dismissed.
AND THE COURT NOTES THAT:
Pursuant to ss.65DA(2) and 62B 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.
IT IS NOTED that publication of this judgment under the pseudonym Timms & Arnold is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 759 of 2009
| MR TIMMS |
Applicant
And
| MS ARNOLD |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The Court has before it an application filed by the father on 17 January 2011. This is the first return of that application. It seeks that the children with whom we are concerned spend equal time with the father and mother, not the nine/five arrangement that presently obtains. It seeks that [X], born in 1995 and therefore 15, go to [omitted] Secondary College and that [Y], who is now 10, go to school close to where the father lives, although I note they would also be closer to where the mother lives than is [omitted] where [Y] presently goes to school.
The mother in her response seeks to maintain the existing orders made by consent in this Court on 31 August 2009 and further, that [X] go to school at [omitted], which is slightly farther away than [omitted] although not, as it would appear, to such a degree as to be of any great moment. I should emphasise that because of the timing of the matter, the father seeks that a decision, at least on an interim basis, be made today as to which school [X] attends.
The history of the litigation between the parties is unfortunate in the sense that it is extremely long-lasting. Counsel for the mother has asserted the following chronology without correction or comment. The parties married in 1991. Their eldest child, [Z], is now over 18 and lives with the father. [X], as I say, is 15 and [Y] 10. [X] and [Y] have been students in [omitted] since 2008. The parties separated on 22 July 2003, and a regime was put in place whereby the children live with the mother but spend time with the father.
Final orders were made following Court application on 16 September 2004. Those orders followed the preparation of a family report by Mr P in January 2004. The orders were made by consent and involved joint parental responsibility; the children were to live with the mother but spend alternate weekends from Friday to Monday, plus a further Friday, with the father. The orders made reflected the recommendations of Mr P's report.
In 2005 the father commenced a second parenting proceeding, and as in the previous one and indeed in this one, he sought that the children live primarily with him. Final orders were made once again by consent on 6 November 2005 that the children were to live with the mother - the time on the weekend was shortened from Friday to Sunday and the alternate Friday remained.
A further third tranche of proceedings commenced in January 2009, which led to the orders on 31 August 2009 to which I have referred. In the context of that proceeding, a report was prepared by Ms B. The children, in the ultimate it has emerged, are to live with the mother, but spend from Thursday to Monday on one weekend with the father. By consent the second Friday has been continued. Thus the regime is now five nights out of 14 the children spend with the father, and he seeks that that be extended to a figure of seven.
The mother takes a Rice & Asplund point. The working of what is known as the rule in Rice & Asplund (1979) FLC 90-725 was considered, in my respectful view authoritatively, by Warnick J in the case of SPS & PLS. His Honour’s decision, in the form that I have it, was given on 28 February 2008. The one I have for some reason does not have the Court’s reference on it. The lower Court mention was [2007] FMCAfam 907. I respectfully refer to and adopt all of his Honour’s reasons for judgment that deal with the Rice & Asplund issue, but would refer to the following particular paragraphs. In paragraph [48], his Honour said:
“In my view, reflection on the rule shows that:
(i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing –
and I am only dealing with the relevant parts –
(iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
At paragraph [56], his Honour went on to say:
“56. As seen above, in Rice & Asplund, Evatt CJ recognised that a purpose of the rule was to discourage “endless litigation”. I opine that the public interest in the finality of litigation is at least partly derived from a desire to avoid the public expense of subsequent hearings and the imposition of them on court time.
57. In In the Marriage of McEnearney, Nygh J moved beyond the general position of public interest in the finality of all litigation, to purposes more specific to family law. He said (at 75,499):
…the principle that there be an end to litigation has equal force in custodial disputes and in some ways may have even greater force in custodial disputes.
The last thing, of course, that this court would wish to see would be a perennial football match between parents, who, because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child. (Emphasis added).
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.
59. If the rule is addressed as a preliminary matter and proves determinative of the application, all these purposes can be served.”
His Honour went on later in his judgment to expound various aspects of what he had set out as preliminary propositions, and at paragraph [84], under the heading “Shorthand” Statements of the Rule May Contribute to Misapplication, his Honour said relevantly:
“The essential question however is as to the sufficiency of new events to provoke a new inquiry. The answer to this question involves putting events in the context of the broader circumstances pertaining to arrangements for a child and measuring the significance of the events against the significance of the steps that might follow in light of them.”
Here, the father makes a number of points, which I should emphasise I am dealing with in a rather shorthand way, given the time of the day, the amount of time I have had to deal with the matter, and the exigencies of this matter being in a duty list in any event. He raises the question of the distance taken driving to school. It is clear, as counsel for the mother submits, that that was an issue present and obtaining in 2008. He likewise refers to the fact that the children wish to spend more time with him. That was clearly an extant issue in the 2009 case, and possibly earlier ones also, in respect of which I have less information.
He refers to the presence of a new half-sibling. That is indeed the case, but there is not much emphasis on that in the affidavit, no doubt because of the youth of the children. But the two children with whom I am primarily concerned will be with that half-sibling on five out of 14 nights in any event. Two days more are not necessarily likely to make any difference in the degree of affection and interaction with that child, especially given the quite considerable age difference between them and the fact that the extra will be on evenings of school nights in any event. I note further that [X] is autistic in any event, and his capacity to interrelate with siblings is not, in my view, entirely clear from the material. Although fortunately and very happily, I think I can infer from Ms B’s report that it is more probable than otherwise that he will be able to form a satisfactory and bonded relationship, at least to an extent, with his new half-sibling.
A further point made by the father is that the children are isolated socially because of their schools being so far from where they live. In this regard he points to the reports of Ms H made in December 2010. But counsel for the mother is correct again to submit, as she does, that the question of this isolation was already extant in 2008. The father says he has only noticed the effects of it all now because he is taking the children to school since the August 2009 orders. But it is quite clear that those matters were extant when Ms B saw the children, and she described them as “delightful”. It is not clear, and I suspect it is unlikely, that Ms H had access to Ms B’s report and the plethora of material to which this case gives rise. While I noted the contents of her report and I do not, as it were, pass adverse judgment in any way upon them, the fact is that she had heard only one side of what is a complicated story at the time she made the points she did.
Another difficulty raised is the question of [X]’s needs and the possibility of difficulties with VCE. Once again, all of this was well and truly known, at least in outline, in 2009. I note that Ms H says that [X] does not learn as fast as his peers, but she does not say in terms that he will not be able to undertake VCE. The words in her report are “it is possible he may not have the capacity to do VCE”. Obviously, we would all hope that things transpire in such a fashion that he does, but one must accept that it is possible that he cannot.
This is all a balancing exercise, and I refer again to Warnick J’s observation:
“All these matters are matters of the best interest principle, and the best interest principle is that of the children.”
Litigation has been going on intensely over an extended period of time; this is now the fourth such essay before the Court, and it should cease. The parents should, however, confer about [X]. The children should stay with the mother under the current spend time regime provided for by consent orders made only some 14 or 15 months ago.
The mother, it should be noted, does most of the travel, and to the extent that the travel and the arrangements to school create difficulties, she is the one that gets most of the negative effects. The mother’s counsel, quite correctly in my view, conceded that the particular circumstances of [X]’s school were to an extent a new issue. He is, in my view, to stay living with his mother under the same regime wherever he goes to school.
I have given anxious thought to whether I should allow the particular issue of where [X] goes to school to be litigated as a stand-alone item, and have come on balance to the view that it is inappropriate to do so. The mother should, however, reconsider her position. She will now be buttressed by the fact that the children are not going to be taken from her for any great amount of time. As I understand it, it is now agreed that she will be appropriately involved in discussions with Ms H. Ms H has recommended intelligence tests for [X] and issues to do with the school being closer to where he lives. She would be well-advised to take those on board in a cooperative way, since what she most fears will not be ordered against her.
But in the ultimate, it is clear to me that there has been too much litigation to be of benefit to these children. It must come to an end. In saying this, I emphasise I am not in any sense being critical of the father. The wellspring of his applications is understandable, but nonetheless, in the end it is about instituting a regime with as little change as may be practicable, as it is clear from Ms B’s reports and the materials as a whole is desirable. The less change the better.
Failing agreement, the child should go to [omitted] School, which I note has VCAL and the like, which are of course ways to TAFE which may obtain in the event that [X] is not able to do VCE. A further and in my view relevant consideration to which I have given weight is that the completion of the litigation process, which I am going to bring into place by the orders I am making, will reduce pressures both financial and emotional on both sets of families. This can only be to the benefit of the children; the stresses upon them necessarily find an echo in the children themselves.
For those reasons I uphold the mother’s Rice & Asplund objection. I will ask the parties to draw up a short set of minutes to give effect to those conclusions.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 1 February 2011
0