Wagstaff and Wagstaff (No.2)

[2020] FCCA 308

FEDERAL CIRCUIT COURT OF AUSTRALIA

WAGSTAFF & WAGSTAFF (No.2) [2020] FCCA 308

Catchwords:
FAMILY LAW – Parenting – the rule in Rice & Asplund – application allowed.

Legislation:

Family Law Act1975 (Cth), s.13C(1)(b)

Cases cited:

In the marriage of Rice & Asplund (1979) FLC 90-725
Marsden & Winch [2009] FamCAFC 152
SPS & PLS [2008] FamCAFC 16

Applicant: MS WAGSTAFF

Respondent: MR WAGSTAFF

File Number: MLC 8730 of 2016

Judgment of: Judge Mercuri

Hearing date: 30 January 2020

Date of Last Submission: 30 January 2020

Delivered at: Melbourne

Delivered on: 5 February 2020

REPRESENTATION

Advocate for the applicant: Mr MacDonald

Solicitors for the applicant: Pearsons Lawyers

Advocate for the respondent: In person

Solicitors for the respondent: None

ORDERS

1. The matter be adjourned to 9 June 2020 at 9:45am in the duty list for directions.

2. Pursuant to section 13C(1)(b) of the Family Law Act1975 (Cth), the parties attend family dispute resolution by no later than 30 May 2020 to attempt to resolve their issues relating to the care of the children and any relevant personal and interpersonal issues, and

   (a)the parties do everything reasonably necessary to engage in, undertake and successfully complete the family dispute resolution;

   (b)pay all costs associated with their participation in family dispute resolution; and

   (c)the parties are at liberty to attend the family dispute resolution by telephone link.

3. The mother make, file and serve an amended initiating application within 14 days.

4. The father make, file and serve a response within 30 days of receipt of the mother’s amended initiating application referred to at order 3 above.

5. Pursuant to section 65DA(2) of the Family Law Act 1975 (Cth), 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)The mother’s solicitor indicated to the court that the children will remain living at their current residential address and enrolled in their current school.

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

(C)If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

(D)Affected unrepresented parties may apply 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.

(E)Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

(F)If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

(G)Section 121 of the Family Law Act 1975 (Cth) 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 Wagstaff & Wagstaff (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8730 of 2016

MS WAGSTAFF

Applicant

And

MR WAGSTAFF

Respondent

REASONS FOR JUDGMENT

(Revised from the Transcript)

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Background

1. This is an application by the mother for parenting orders in regard to the two children of the relationship, [X] born … 2011 (“[X]”) and [Y] born … 2014 (“[Y]”) (collectively “the children”).

2. The mother’s initiating application filed on 28 August 2019 seeks a variation to the parenting orders made by me on 23 May 2018 following a five-day hearing regarding both property and parenting matters (“the May orders”).  The May orders were then varied by consent of the parties on 24 October 2018 (“the 2018 orders”).

3. The issue that is presently before this court is whether the mother ought to be permitted to press her application or whether it should be dismissed as sought by the father, applying the principles in In the marriage ofRice & Asplund (1979) FLC 90-725 (“Rice & Asplund”).

4. In her initiating application, the mother sought the following final orders, amongst other things:

   a)the father’s time with the children be suspended pending the father providing certain evidence as to the safety of his home;

   b)the father be required to undergo random supervised drug screens within 48 hours of a request by the mother;

   c)the mother be permitted to change the children’s school; and

   d)there be a change to the child’s time with the father to accommodate the proposed change in school.

5. In support of her application, the mother filed an affidavit on 28 August 2019 in which she attests to the change in her financial circumstances following the making of the May orders.

6. This resulted in her having to sell her home in Town A in February 2019, with settlement occurring in April 2019. After repayment of outstanding debts, she said that she had less than $90,000 remaining from the proceeds of sale.

7. The mother further stated that after settlement, she and the children moved into her partner’s home in Town D.  This decision was largely financial and relationship based.  She said that she could no longer afford to finance a home on her own, her relationship with her new partner was at that point solid, and they decided it was time to move in together. 

8. The mother’s affidavit also stated that she and her partner considered remaining in the Town A area.  However, this was not possible because her partner operates a family business in Town B which could not be relocated.  The mother also attested to the positive relationship that the children have developed with her partner, and that they plan to marry and have children together.

9. She further stated she and her partner were presently renting in Town D and intended to buy a property in Town C, where properties are more affordable, larger and would be closer to her partner’s business.  She gave further evidence about the onerous nature of the travel time between Town D and the children’s school, kindergarten and day care.

10. In addition to setting out her own circumstances, the mother was critical of the father’s parenting.  She stated that:

    a)he was not committed to the children’s education;

    b)they were frequently late to school on the days that they were with him;

    c)she was concerned about the father’s parenting in relation to:

    i)alleged drug use;

    ii)failure to ensure that his home is safe for the children;

    iii)exposing the children to different women with whom he is in a relationship at various times; and

    iv)other intimidatory conduct towards her.

11. The mother further asserted that her mental health had suffered as a result of the uncertainty and stress relating to her relationship with the father. She pointed to difficulties in obtaining a passport for [X] as further example of the parents’ inability to communicate in relation to the children.

12. In his response, the father sought orders dismissing the mother’s application and costs in his favour. He said that this was a case to which the principles in Rice & Asplund apply, and that he was not aware of any change in circumstance which would warrant a reconsideration of the 2018 orders.

13. The father further stated that when he became aware that the mother had planned to move to Town D with the children and had placed her Town A home on the market, he instructed his solicitors to write to her seeking confirmation of this in November 2018. 

14. The father said that he was not advised of a response until 12 July 2019, after the mother had, in fact, moved with the children to Town D.  He then instructed his solicitors to write to her, and they did so in correspondence which is found at W3 to his affidavit filed on 1 November 2019.  I do not propose to set that out in any detail, but I have had regard to that in coming to my decision in this matter.

15. In August 2019, further correspondence passed between the parties about the mother’s allegations regarding the father’s drug use and lack of safety at his home.  These allegations were rejected by the father through his solicitors.

16. Shortly thereafter, the mother issued these proceedings.  There was also some attempt, albeit unsuccessful, at mediation.

17. The father’s position was that the children should continue to attend Town A Primary School and continue to be able to participate in their local activities.

18. When the mother’s application came on before me on 6 November 2019, I ordered:

    a)that it be listed for a threshold argument in relation to the Rice & Asplund point, which was heard before the court on 30 January 2020; and

    b)that the parties file and serve any further affidavit material upon which they intended to rely, to which the mother did.  The father did not file any further material.

19. Much of the mother’s further affidavit traversed the same matters dealt with in her initial affidavit, although in somewhat more detail.  Again, I do not propose to set that out in any great detail, but have had regard to that affidavit material as well.

20. At the hearing before me on 6 November 2019, the mother was represented by counsel and the father appeared on his own behalf.  It was submitted on behalf of the mother that she primarily sought orders relating to the children’s schooling and consequential changes to the children’s time with the father.

21. I note that the mother’s submissions did not make any reference to the orders sought in her initiating application regarding drug testing and assurances about safety at the father’s property.

22. It was submitted on behalf of the mother that there had been a change warranting reconsideration of the May orders in this matter on the basis that the final orders were made with the expectation that the mother would reside in the Town A area.  It was further submitted that the question of the children’s schooling was not the subject of the previous proceedings. 

23. Counsel for the mother submitted that the mother’s application for permission to change the children’s schooling was based on changed circumstances since the trial. In particular, the mother’s changed financial circumstances which led her to move in with her partner in Town D.

24. In addition, she indicated that she and her partner wished to relocate to Town C, adding further to the distance between the children’s current school and her home.  The mother also pointed to the fact that the relationship with her partner had changed to the point where they now wished to marry and have children.

25. It was further submitted that on the basis of the father’s own affidavit material, the father was aware that the mother was selling her home, and that if she were to move to Town D, this would result in the children being required to travel approximately two hours each day in order to attend school at times when they were in the mother’s care.

26. In response, the father submitted that the mother was simply seeking to re‑agitate issues which had been the subject of the original proceedings.  He also disputed many of the allegations in the mother’s material.

Rice & Asplund principle

1. Both parties accept that in determining this matter, the court must have regard to the principles set out in Rice & Asplund.  Whilst the parties agree on what those principles are, they take a different view as to how those principles are to be applied 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 fact was not disclosed at the previous hearing which would justify the reversal.[1]

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

3. It is well settled that the Rice & Asplund principle is a manifestation of the best interests test.

4. In Marsden & Winch [2009] FamCAFC 152 (“Marsden & Winch”), 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.

5. On appeal to the Full Court, the father challenged, among other things, the manner in which the trial judge had applied the threshold test or the test in Rice & Asplund, and essentially argued that the father’s circumstances were not sufficient to justify a reopening of the issues in dispute in that matter.[2]

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

6. In considering this ground, the Full Court relevantly recalled that Warnick J in SPS & PLS (2008) FamCAFC 16 (“SPS & PLS”) said:

   The “rule” in In the marriage of Rice & 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 or at the end of a hearing.[3]

   [3] Marsden & Winch [2009] FamCAFC 152 at [41] per Warnick J in SPS & PLS [2008] FamCAFC 16 at [1].

   …

   Before turning to what Warnick J said, it is useful to recall that Rice & Asplund involved an appeal from parenting 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, for change is an ever-present factor in human affairs.  Therefore, the court would need to be satisfied by the applicant that… there is some changed 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.[4]

   [4] Marsden & Winch [2009] FamCAFC 152 at [42] per Warnick J in SPS & PLS [2008] FamCAFC 16 at [45]-[49].

7. The Full Court then adopted the following comments and conclusions of Warnick J in his decision in SPS & PLS:

   When the threshold question described in Rice & Asplund is determined as a preliminary matter, it remains a determination on the merits.  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 new 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.[5]

   [5] Marsden & Winch [2009] FamCAFC 152 at [47] per Warnick J in SPS & PLS [2008] FamCAFC 16 at [81].

8. 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.[6]

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

9. In that case, the Full Court acknowledged that there would, of course, be circumstances in which a court would need to reconsider decisions previously made in light of significant changes.  Ultimately each case depends on its own circumstances.  The Full Court identified the following factors to assist in determining whether such changed circumstances justified a reopening of a case.  Those factors are:

   a)firstly, the past circumstances, including the reasons for the decision and the evidence upon which it was based;

   b)secondly, whether there is a likelihood of orders being varied in a significant way as a result of a new hearing; and

   c)thirdly, 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.

Analysis and conclusion

1. Turning to apply these principles to the present facts, the May orders were made in circumstances where the parties lived in close proximity to each other.  They provided for the children to spend substantial and significant time with the father on a fortnightly basis.  They also provided for the parents to have equal shared parental responsibility.

2. In this case, there are a number of factual disputes raised in the parties’ material.  However, what is not in dispute is:

   a)in early 2019, the mother sold her home in Town A;

   b)the mother has moved in with her partner in Town D;

   c)the mother’s stated intention is to move to Town C; and

   d)as a consequence of her move to Town D, the children are now required to undertake significant travel each day they are in her care, as they remain enrolled at Town A Primary School.

3. It is also not in dispute that at the time of the trial the mother was living in Town A.  She gave evidence at that time that it was her intention to remain living in that area.  Indeed, the property orders which were made in May 2018 provided for her to retain the former matrimonial home.

4. Whilst she disclosed being in a relationship with her current partner at the time of trial, she was not at that stage living with him, and the evidence was that the relationship was still in its early stages.

5. As I have previously indicated, the mother has now stated that that relationship has progressed, and she and her partner are now at a stage where they intend to marry and have children of their own.  The mother has also given evidence that her partner has developed a positive relationship with the children.

6. In correspondence from the father’s solicitors to the mother on 24 July 2019, the father made reference to the need for the mother to ensure that any change in her residence and the children’s residence was still able to accommodate the May orders. In that letter, his solicitors said:

   If your client is resolved to the move notwithstanding the Order, then our client is agreeable to an arrangement whereby the children reside primarily with him.[7]

   [7] Affidavit of the father sworn and filed 1 November 2019 at annexure TW3.

7. Implicit in this statement is the father’s acknowledgement that any move by the mother to Area E would make the continued operation of the May orders problematic for the children in the long term.  He indicated a preparedness to deal with this issue by having the children reside primarily with him.  Absent agreement by the mother, such a change would also require a variation to the May orders.

1. In those circumstances, I am satisfied that the mother has established a prima facie case that there has been a significant change in circumstances as a result of her move with the children to Town D.  Whilst the question of her relationship with her new partner was raised in the previous hearing, it is clear on the evidence that the nature of that relationship has altered since the trial in this matter.

2. Having concluded that there is a significant change on a prima facie basis, the court must now consider whether it is in the children’s best interests for the parties to be permitted to re-litigate parenting orders.

3. Adopting the analysis in Marsden & Winch, the questions which must be considered are:

   a)whether it is likely that a change to the orders might follow any further hearing; and

   b)if so, whether any such changes would outweigh the negative effect of ongoing litigation on these children.

4. There is a likelihood for a variation of the May orders in this case. If the mother’s application was granted, it could result in a change to the children’s schooling and a reduction in the children’s regular weekly time with their father. If the matter proceeds, the father has indicated that he will seek a change of residence to allow the children to remain at their current school and continue to participate in their various activities in the local area. In either case, there is a likelihood of a significant change to the current orders.

5. The remaining question is whether allowing the litigation to proceed outweighs the negative impact had on the children. I have had regard to the fact that these parties have been involved in lengthy litigation in this court since the end of 2016. In the lives of two young children, this is very significant.

6. Conversely, the mother’s move to Town D has increased the travel that the children have to undertake to continue, not only to attend school but also to continue to participate in extra-curricular activities and spend time with their father.  The mother has now indicated that she wishes to move even further away from the father’s residence.

7. On balance, I am satisfied that the issues in dispute between these parties need to be resolved to provide some stability for these children going forward, and this outweighs the negative impact on the children of any further litigation.

8. Finally, for completeness, it was submitted on behalf of the mother that it is open to the court to conclude that there are sufficient changed circumstances to allow the reopening of the question of time spent, but insufficient circumstances to allow the reopening of the question of with whom the children live.  The father submitted, as I say, that if the court were to allow the mother’s application to proceed, he would seek to apply for orders that the children live with him.

9. Having established that the principles in Rice & Asplund have been satisfied, I do not accept that there is any basis on which any future proceedings ought to be limited to a consideration of the time spent with each parent and not the consideration of the live with arrangements.  For each of these reasons, I am satisfied that the requirements of Rice & Asplund have been met, and the mother’s initiating application ought to proceed.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate: 

Date:  5 February 2020