Wheaton & Monson

Case [2022] FedCFamC1F 337

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Wheaton & Monson [2022] FedCFamC1F 337

File number(s): BRC 9166 of 2021
Judgment of: ALTOBELLI J
Date of judgment: 25 March 2022
Catchwords: FAMILY LAW – Rice & Asplund – Where parties had previously entered into consent orders providing for the child to live with the mother and spend three nights a fortnight with his father – Where the father now seeks to expand the time the child spends with him to five nights a fortnight – Where the mother seeks that the father’s application be dismissed – Finding that there has been no significant change in circumstances – Finding that it would not be in the best interests of the child to reopen litigation – Application dismissed.
Legislation: Family Law Act 1975 (Cth)
Cases cited:

Baisman & Cartmill [2022] FedCFamC1A 36

Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84
Division: Division 1 First Instance
Number of paragraphs: 23
Date of hearing: 25 March 2022
Place: Sydney (via videoconference)
Solicitor for the Applicant: Ms Jevtovic, Clarity Legal Group
Solicitor for the Respondent: Litigant in Person

ORDERS

BRC 9166 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR WHEATON

Applicant
AND:

MS MONSON

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

25 MARCH 2022

THE COURT ORDERS THAT:

1.The Applicant Father’s application for an adjournment for the purposes of obtaining a family report is declined.

2.The Father’s Initiating Application and Application in a Proceeding filed 14 July 2021 are dismissed.

THE COURT ORDERS BY CONSENT THAT:

3.That the Father and the Mother shall have equal shared parental responsibility for the major long- term issues of the child, X born 2014 (‘the child’).

4.That the Father and the Mother shall consult with each other about decisions to be made in the exercise of their shared parental responsibility as follows:

(a)They shall inform the other parent about the decisions to be made;

(b)They shall consult with each other on terms that they agree to; and

(c)They shall make a genuine effort to come to a joint decision.

5.That the Father and the Mother have the sole responsibility for all decisions concerning the child’s day to day care, welfare and development for the time they are in that parent’s care.

Changeovers

6.That if not at school, changeovers occur at the BP Service Centre at Suburb D.

(a)If the maternal grandmother facilitates changeover, the Father must be notified in writing via text message no less than two hours before the changeover and then changeovers are to occur at McDonalds Suburb B unless otherwise agreed in writing.

(b)Third parties may facilitate changeover on the condition that the other party is notified in writing prior to the changeover.

Special Occasions

7.That the child spend time with the parents for special occasions as agreed between the parties but failing agreement as follows:

(a)For the Easter, June/July and September/October school holidays:

(i)In odd numbered ears, with the Father for the first half of the…

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Wheaton & Monson [2022] FedCFamC1F 337
Case
[2022] FedCFamC1F 337
Decision Date

CaseChat Overview and Summary

The case of Wheaton & Monson involves a dispute between the parties regarding the time their child spends with each parent. The father sought to increase the time the child spends with him from three nights a fortnight to five nights a fortnight. The mother opposed the father’s application, seeking that it be dismissed. The case was heard by the Federal Circuit and Family Court of Australia.

The legal issue before the court was whether there had been a significant change in circumstances since the previous parenting orders were made, which would justify the re-litigation of the matter. The court had to consider the rule in Rice & Asplund, which is based on the notion that it will only be in a child’s best interests to expose them to further litigation if there has been a significant change in circumstances since the previous parenting orders were made.

The court found that there had been no significant change in circumstances since the previous parenting orders were made. The court also found that it would not be in the best interests of the child to reopen litigation. The father’s application was therefore dismissed. The court noted that if the mother’s application was successful, it would mean that the father’s application stops there, and it would be, in effect, a summary dismissal of his application. If the father’s application was successful, then the case would proceed in the normal fashion, and it would return to the docket registrar in Brisbane.

In summary, the court dismissed the father’s application to increase the time the child spends with him. The court found that there had been no significant change in circumstances since the previous parenting orders were made, and that it would not be in the best interests of the child to reopen litigation.

Orders

Orders of the court

BRC 9166 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR WHEATON

Applicant

AND:

MS MONSON

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

25 MARCH 2022

THE COURT ORDERS THAT:

1. The Applicant Father’s application for an adjournment for the purposes of obtaining a family report is declined.

2. The Father’s Initiating Application and Application in a Proceeding filed 14 July 2021 are dismissed.

THE COURT ORDERS BY CONSENT THAT:

3. That the Father and the Mother shall have equal shared parental responsibility for the major long- term issues of the child, X born 2014 (‘the child’).

4. That the Father and the Mother shall consult with each other about decisions to be made in the exercise of their shared parental responsibility as follows:

(a) They shall inform the other parent about the decisions to be made;

(b) They shall consult with each other on terms that they agree to; and

(c) They shall make a genuine effort to come to a joint decision.

5. That the Father and the Mother have the sole responsibility for all decisions concerning the child’s day to day care, welfare and development for the time they are in that parent’s care.

Changeovers

6. That if not at school, changeovers occur at the BP Service Centre at Suburb D.

(a) If the maternal grandmother facilitates changeover, the Father must be notified in writing via text message no less than two hours before the changeover and then changeovers are to occur at McDonalds Suburb B unless otherwise agreed in writing.

(b) Third parties may facilitate changeover on the condition that the other party is notified in writing prior to the changeover.

Special Occasions

7. That the child spend time with the parents for special occasions as agreed between the parties but failing agreement as follows:

(a) For the Easter, June/July and September/October school holidays:

(i) In odd numbered ears, with the Father for the first half of the holidays and with the Mother for the second half of the holidays;

(ii) In even numbered years, with the Mother for the first half of the holidays and with the Father for the second half of the holidays.

(b) With the Father for Christmas school holidays from the 29th December at 9:00am to the 6th January at 4:00pm and with the Mother for the remainder of the holidays, save for time specified in these Orders.

(c) For the Christmas Days period:

(i) In odd numbered years, with the Father 3:00pm Christmas Eve to 3:00pm Christmas Day and with the Mother 3:00pm Christmas Day to 3:00pm Boxing Day; and

(ii) In even numbered years, with the Mother 3:00pm Christmas Eve to 3:00pm Christmas Day and with the Father 3:00pm Christmas Day to 3:00pm Boxing Day.

(d) On Father’s Day, from 8:00am to before school on Monday with the Father;

(e) On Mother’s Day, from 8:00am to before school on Monday with the Mother;

(f) For the child’s birthdays:

(i) If on a school day, on the child’s birthday each year from after school to before school the following day with the parent they are not spending time with or if not a school day, 8:00am to 1:00pm with the parent they are not spending time with.

(g) For the parent’s birthdays:

(i) If on a school day, each year from after school to before school the following day with the parent whose birthday it is or if not a school day, 8:00am on that parent’s birthday to 8.00am the following day with the parent whose birthday it is.

8. For the purposes of the preceding order, school holiday time shall commence: -

(a) When a parent’s time falls in the first half of the holidays from after school on the day that the school term finishes and concludes at 3:00pm on the day calculated to be the mid-way point of the holidays;

(b) When a parent’s time falls in the second half of the school holidays from 3:00pm on the day calculated to be mid-way point of the holidays when the time spent shall end before school on the day that the school term commences;

(c) School holidays shall be deemed to commence at the close of the school on the day that the school term finishes and conclude at the open of the school on the day that the child returns to school and the number of nights in each school holiday period is to be used to calculate one half of the school holidays and if there is an uneven number of nights the mother shall retain the extra night in odd years and the father shall retain the extra night in even years.

Travel

9. The mother and father agree that either parent is permitted to travel overseas with the child on one occasion per year for a maximum of a fourteen (14) day period, unless otherwise agreed between the parents in writing, subject to the following:

(a) The country where the parent is proposing the child travel to is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction;

(b) Sixty (60) days prior to the intended departure date, or at the time of booking, whichever is earlier, written notice will be given to the other parent of the intended departure date, location of travel and an itinerary including details of accommodation and phone contact details;

(c) If an itinerary is not able to be given 60 days prior to the departure date, the travelling parent will provide the other parent with flight details and copies of return tickets including details (including the address and contact details) of where the child will be staying during the overseas travel immediately upon it being finalised and no less than 14 days before departure;

(d) That the travelling parent must obtain the written consent of the other parent should the destination hold an alert level on the Australian Government Travel Advisory Index of Level 4 – “Do not travel”.

10. That neither parent organise travel with the child during the time that the other parent has first arranged travel with the child.

11. That if the mother travels overseas with the child during the father’s time, the parties will agree on make-up time in writing prior to the proposed travel.

Passports

12. In the event that the parents intend to travel with the child overseas or consent to the child travelling overseas in accordance with these Orders, the mother and father are to ensure that the child has a current Australian passports and should the same need to be renewed, then both parents will sign and return the necessary applications to the other parent within fourteen (14) days of them being produced to them.

13. That pursuant to section 11(1)(a) of the Australian Passports Act 2005, the parents’ consent to the child travelling outside the Commonwealth of Australia to any Hague Convention listed country (as a destination country) and having a current Australian passport.

14. The parents will do all acts and things and sign all documents necessary to the Australian Passport office (or such other Department or instrumentality administering Australian passports) within 14 days of receiving the document from the parent requesting the passports to enable the child to be issued with an Australian passport (travel document).

15. That in the event that either parent refuses or neglects to sign any document necessary to issue the child with an Australian passport despite these Orders and having consented to an Australian passport (or travel document) being issued, such refusal will constitute sufficient special circumstances for a party to seek that the Minister administering the Australian Passports Act 2005 give consideration to issuing an Australian passport (travel document) pursuant to section 11(2)(a) of the Australian Passports Act 2005.

16. That the parents agree to share equally in the costs associated with the passport applications and/or passport renewals for the child.

17. That the child’s passport be held as follows:

(a) Until the first period of overseas travel, the child’s passport will be held by the mother;

(b) Upon compliance with Order 9 herein, the parent holding the child’s passport will release it to the travelling parent;

(c) On the child’s return from overseas travel, the child’s passports will be held by that parent until the next overseas travel pursuant to these Orders.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

If the mother is successful in her application, it means that the father’s application stops here. It would be, in effect, a summary dismissal of his application. If the father’s application is successful, then the case would proceed in the normal fashion, and it would return to the docket registrar, presumably in Brisbane. The parties are in Brisbane and I am sitting in Sydney, and the matter comes before me because of a National Rolling List that is happening across the country this week.THE EVIDENCE The material before the Court and which the Court has read was identified and confirmed by the parties at the commencement of the hearing. In support of his case, the father relied on the following documents:(a)Initiating Application filed 14 July 2021;(b)His affidavit filed 14 July 2021;(c)Affidavit of Ms C filed 14 July 2021; and(d)His affidavit filed 22 November 2021. In support of her case, the mother relied on the following documents:(a)Response to Initiating Application filed 21 October 2021; and(b)Her affidavit filed 21 October 2021. I have had the benefit of submissions from the solicitor for the father, as well as submissions from the mother. The mother is representing herself. There was a tendency to tell me things from the bar table that were not in her affidavit material. I exclude that. I am relying exclusively on what is contained in the material before the Court.APPLICABLE LAW The law about Rice & Asplund has recently been summarised by Tree J, sitting as a single judge in the appellate jurisdiction of the Federal Circuit and Family Court of Australia in Baisman & Cartmill [2022] FedCFamC1A 36:11The so-called rule in Rice and Asplund (1979) FLC 90-725 (“Rice & Asplund”) is based on the notion that it will only be in a child’s best interests to expose them to further litigation if there has been a significant change in circumstances since the previous parenting orders were made. The rule has now been considered by a number of Full Courts, although it may fairly be said that the application and operation of the rule remains somewhat opaque. An analysis of those cases, demonstrates that the following relevant principles may either be drawn directly from them, or otherwise logically arise:(a)The rule is but one manifestation of the best interests principle;(b)However best interests are not the only consideration relevant to the application of the rule, with other considerations including public policy issues such as the finality of litigation, and practical matters, such as the stage of the litigation at which the rule is being considered and the nature of issues involved in the several pieces of litigation;(c)The rule requires there to be a sufficient change of circumstances to justify the re-litigation;(d)The rule can be applied at any stage of the proceedings;(e)The effect of the operation of the rule will vary depending upon the time of its application, or more precisely the stage of the litigation when the rule is being applied;(f)If the rule is considered prior to trial, it may be invoked by way of an application for summary dismissal (in which case the court is likely to proceed on the basis of taking the applicant’s case at its highest and not permitting cross-examination) or alternatively may be dealt with by way of preliminary issue (in which case cross-examination may be permitted and findings of fact made);(g)If the rule is raised and considered at trial, most of the evils which the rule is intended to overcome or ameliorate will have already ensued. In considering whether it may be appropriate for the application of the rule to be determined as a preliminary point at trial, factors which may influence that decision will include the dislocation of the trial process if there is a reserved judgment, and the additional delay involved. Converse considerations may be the cost to the parties of any trial if indeed the rule’s application at the end of the trial sees re-litigation impermissible;(h)The rule may also be dealt with at trial by way of something akin to a no case submission, but similar considerations to the determination of the matter as a preliminary issue at trial would again arise;(i)Logically, the extent of revisitation of prior orders sought by an applicant will be relevant in determining the likely impact of any re-litigation on the child. Arguably, if only a small variation of prior orders is sought, the impact on the child is likely to be less;(j)Likewise, the court may only permit re-litigation on one or some of the issues sought to be re-agitated by the applicant, if doing so is in the child’s best interests, or conversely, a wider scope of re-litigation is not in the child’s best interests;(k)Logically, it must be relevant whether or not the prior orders were made by consent, or at the end of a trial, or consequent upon an undefended hearing, and in any case, also relevant will be the circumstances by which the orders came to be made (eg if they were made at an early stage of the proceedings or after lengthy litigation);(l)The parties will be bound by any findings of fact actually or implicitly made in prior orders, at least to the extent that they were necessarily made to quell the controversy;(m)It will be a matter for the trial judge as to whether under s 69ZQ of the Family Law Act 1975 (Cth) (“the Act”), evidence should be restricted only to matters post-dating the last orders, or alternatively, if leave to re-litigate is given, it might be conditional upon a limitation of issues or temporal scope of evidence;(n)Irrespective of the stage the litigation is at when the rule is considered, the determination remains merits based and is not a technical one.DISCUSSION

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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