Wheaton & Monson
[2022] FedCFamC1F 337
•25 March 2022
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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wheaton & Monson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALTOBELLI J:
This case is about an eight-year-old child, X born in 2014 (“X”). X currently lives with his mother, Ms Monson (“the mother”) and spends time with his father, Mr Wheaton (“the father”) in accordance with orders that were made on 3 October 2019 by consent. The orders are quite comprehensive but, for present purposes, the significant issue in the case is the amount of time that he spends with the father. The orders provide for X to spend half the school holidays with the father, plus each alternate weekend from after school on Friday to before school on Monday. The parents live about an hour apart and the impression from the evidence that they have filed is that they have been able to make this work reasonably well.
There have been some issues, as will be discussed below. The father has, by way of an application that was filed on 14 July 2021, sought to vary the orders, the main effect of the changes being that X would spend five out of 14 nights a fortnight with him rather than the existing three out of 14 nights a fortnight. That would be achieved by introducing another night in one week, so that time with the father would start on Thursday night rather than Friday night, and also by creating an overnight the following Wednesday night. The mother submits that the father’s application should not proceed on the basis that he has not established that there has been a sufficient change in circumstances to warrant the Court considering the father’s application. It is this issue of the application of the rule in Rice & Asplund (1979) FLC 90-725 that comes before me.
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
One of the things I have to do in an application like this is to take the case that is presented by both parties at its highest. This is easier said than done, especially when the case presented by both parties are so different. Nonetheless, it is possible to form some strong impressions. The parents can communicate but they struggle to do so effectively. They can reach agreement but often only with the intervention of a third party. Today was the perfect example of that. With my assistance, the parties were able to reach agreement about a range of non-contentious issues in the orders sought by the father in his application, and those orders were made by consent. Whilst that is positive, I do not think it can be taken too far in this case because it was only with the assistance of an external authority figure that they were able to do this. I stand by my initial impression that they struggle to communicate effectively.
When one reads the affidavits of the parties, the low level of trust between them becomes clear. They easily lapse into thinking the worst of the other. Unfortunately, the best example of that was the father’s assertion that the mother was “alienating” X against him, when there is no evidence of that. In fact, the evidence suggests that the orders have been complied with and that X has a good relationship with the father. The fact of the use of this sort of language demonstrates the low level of trust that exists between them.
Reading the affidavits in this case, including that of the father’s partner, suggests to me that it is quite possible that X has been exposed to adult conversations or adult matters, or is aware of issues that he should not be aware of, and the impression is that this is happening on both sides. I get the impression that there have been some issues with telephone communication. I must say the issues do not appear to be earth-shattering issues and they are issues that must be weighed against the alternative—that is, letting litigation continue with all of its ramifications. There have been some problems with contact but, again, relatively minor problems that do not go anywhere near, for example, a contravention application. Again, my impression is that there are orders in place that are working more than reasonably well. When one reads the affidavits of the parents, one gets the impression that there are different parenting styles at work, and perhaps the differences have been accentuated since the relationship has broken down. That is not a criticism, but rather an observation.
The father raises a number of concerns, such as the alienation issue, which are inconsistent with the facts of this case. The father raises concerns about stability in the mother’s relationships in his affidavits. The evidence does not go so far as to support those concerns, but even if it were the case, it is not necessarily an issue that goes to the welfare of X and would not, of itself, represent a significant change in circumstance. The father refers to the presence of foreign students in the mother’s home as if that is something that informs a decision such as the present one. All of these things are manifestations of what I said before about lack of trust and inability to communicate constructively. There is no doubt, curiously, when you look at the evidence of both parents, that the father is an actively engaged father with X. Doing the best I can, I cannot see the problem with the existing arrangement. The father simply wants more time, and that is understandable at many levels, but it needs to be balanced against other things.
When one looks at the range of considerations that a court has to look at in deciding, firstly, whether there has been a significant change and, secondly, even if there has, whether is it in the best interests of the child to reopen litigation, a few things become apparent. Firstly, in terms of significant change, the father’s solicitor properly discharged her duty as an officer of this Court in making the submission that there was no one issue that manifested a material change in circumstances. It was, rather, the culmination of a range of smaller issues. On the material before me, none of the small issues have caused X’s relationship with the father to diminish in any way.
When one looks at the evidence for significant change in circumstances, it is just not there. What has happened is that both the mother and father, as well as X, have got on with their lives. In the father’s case, especially, this has involved change—moving away, re-partnering, and new work. However, none of those things amount to a significant change in his circumstances. When one looks at whether it would otherwise be in the best interests of X to consider a change in his parenting arrangements at this particular point, we must consider what the Family Law Act 1975 (Cth) says about best interests. There is already a meaningful relationship between the father and X, and there is no evidence to suggest that it has been, or is being, diminished. If anything, the father’s argument at its highest is an assertion that he is being deprived of the opportunity to have an even more meaningful relationship with X because he is not having extra time with him. That is an understandable argument, but again it needs to be balanced with the impact on X and the parents of allowing the litigation to go further.
Objectively, there are no risk of harm issues in this case. Both parents tell the Court that X has been expressing views to them about spending time with the father. He tells the mother that he wants to spend less time. He tells the father that he wants to spend more time. What that demonstrates is that it is unwise for me to place any weight on what X is supposedly telling his parents. I raised with the parties the possibility that X is caught in the middle of a conflict, that he loves both parents, and that he is saying what he thinks he needs to say to each of them in the circumstances. Therefore, any views that X has expressed are not views that the Court would be prepared to place any weight on, particularly when one remembers the context of the conflict and his age.
The Court must also consider the parents’ participation in decision making and there are clearly some frustrations here on the father’s side. These are also put in dispute by the mother. This factor is not one that objectively points to it being in the best interests of X to reopen litigation.
I do not have evidence about how X would cope with what would be a significant change in his life, as the father’s application would bring change on a number of levels. It is not just the change in quantity of time from three nights to five, because children experience more than just the increase in time. From X’s perspective, it would be a very different orientation of his week where he starts spending overnight midweek time with the father in the context of X probably starting to develop his own ideas of what he wants to do during the week. I do not have any indication as to what impact that would have on him, and that is a strong contra-indicator to allowing change to happen.
There are no significant issues of practical difficulty or expense at the moment but the mother, in her affidavit, raises the prospect of practical issues arising if the father’s proposal were to be accepted and I just do not know whether that is the case or not. The travel distance between the parents at the moment is about 50 minutes on the father’s case, and about an hour in light traffic on the mother’s case. I accept that there might be circumstances where it takes longer, or it might take less, but it is possible that there could be issues that arise, especially in terms of the midweek contact.
There is objectively no issue with the parenting capacity of either parent. The mother and father seem to be doing the best they possibly can for X in the circumstances.
It is of concern to the Court that there are mutual allegations of family violence, particularly in terms of controlling and coercive family violence. These issues are raised in terms of things that have happened historically, but as so often happens with family violence, past incidents can often cast a shadow that lasts for many years afterwards. There are shades of this (if I can extend the metaphor) in the affidavits of both parents who continue to say that they experience each other as being controlling. Particularly, it seems to be the mother’s experience of the litigation and the mediation that has happened so far. Indeed, the mother in her affidavit uses the word “attrition”, or a “war of attrition”, or something like that, but that is certainly the impression that I have formed in this case.
If the matter were to proceed, it is inevitable that a Family Report would need to be obtained. That would expose not just X, but also his sister Y, to the intrusion of a Family Report. It would prolong this litigation for a period of months, and probably years to get this case on for hearing. All of these factors are taken into account in deciding whether there has been a significant change of circumstances and, even if there has not, whether it would be in the best interests of the child to revisit the litigation about X.
When we go to the various statements of principle that are set out by Tree J in Baisman & Cartmill, his Honour makes a number of points that are pertinent in this case. For example, the best interests are not the only consideration. There other considerations including public policy issues, such as the finality of litigation. If I allow this case to proceed, there is so much more ahead of this family. His Honour talks about there being a sufficient change of circumstances, highlighting that it is not just any change of circumstance, nor is it natural or normal change, that would warrant revisiting the litigation. The case needs to be taken at its highest but the difficulty is that both cases need to be taken at their highest, and this is what leads to many of the observations that I have made.
The other relevant factor in this case is that the father is not seeking minor change. He is seeking a significant change in terms of the orders that he proposes. When all these factors are taken into account, this Court concludes that there has not been a significant change of circumstances, such that would warrant further litigation in relation to X. In any event, it is not in the best interests of X that this litigation be allowed to continue. Accordingly, based on the principles contained in Rice & Asplund, as summarised in Baisman & Cartmill, I dismiss the father’s application filed 14 July 2021.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli delivered on 25 March 2022. Associate:
Dated: 25 March 2022
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