Wickham and Jones
[2010] FamCA 837
•10 September 2010
FAMILY COURT OF AUSTRALIA
| WICKHAM & JONES | [2010] FamCA 837 |
| FAMILY LAW – CHILDREN – lengthy hearing 2006 – application for dismissal – relying upon principals set out in Rice v-Asplund – proceedings summarily dismissed |
| Rice v Asplund (1979) FLC 90-725 P & S [2007] FMCfam 1039 Cortes & Cabrera [2007] FMCAfam 293 |
| McIntosh J, Smyth B, Kelaher M, Wells Y and Long C – “Post Separation Parenting Arrangements and Developmental Outcomes for Infants and Children” – May 2010 |
| APPLICANT: | Ms Wickham |
| RESPONDENT: | Mr Jones |
| FILE NUMBER: | LNC | 72 | of | 2008 |
| DATE DELIVERED: | 10 September 2010 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Launceston |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 4 August 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Trezise |
| SOLICITOR FOR THE APPLICANT: | Andrea Trezise |
| COUNSEL FOR THE RESPONDENT: | Mr McVeity |
| SOLICITOR FOR THE RESPONDENT: | McVeity & Associates |
Orders
All pending applications between the parties are dismissed save and except the respective parties’ costs application.
The parties’ costs applications are stood over for hearing at 10.00am on
22 November 2010.This matter be removed from the list of cases requiring determination.
IT IS NOTED
In the event that the parties do not appear on 22 November 2010 (either in person or represented) their respective costs applications will be dismissed.
IT IS DIRECTED
Exhibits 1 and 2 be attached to the reasons for decision dated the 17 November 2006.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend
IT IS FURTHER NOTED that publication of this judgment under the pseudonym Wickham & Jones is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: LNC 72 of 2008
| MS WICKHAM |
Applicant
And
| MR JONES |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Mr Jones and Ms Wickham are the parents of two children, L aged 14 almost 15 and E aged 11.
Orders were made by me in November 2006 that the parents have equal shared parental responsibility and that during school term the children live with the father on alternate weekends and that in respect of the second and fourth such alternate weekends, the children will live with the father for the whole of the following week.
The father now seeks that those orders be varied to provide that the children spend equal time with each parent, on a week about basis, during school term. That application is opposed.
The mother seeks orders for the dismissal of the proceedings based upon the principals set out in Rice v Asplund (1979) FLC 90-725.
The issue is whether “there is some changed circumstances which will justify such a serious step, some new factor arising, or if any rate, some fact which was not disclosed at the previous hearing which could have been material”.[1]
[1] Rice v Asplund (1979) FLC 90-725 at page 78,905.
BACKGROUND
The parties were married in 1986 and separated in 2003.
Their son L was born in September 1995 and daughter E in May 1999. There was a hearing of the parenting issues before me and I delivered ex tempore reasons on 17 November 2006.
The proceedings between the parties commenced in 2004 and were heard in November 2006. A Family Report was prepared in November 2005. A Family Consultant recommended that the children spend equal time with each parent. I did not make an order for equal time.
Orders were made that the parents have equal shared parental responsibility and, relevantly, orders 12(j) and (k) provided:-
(j) from after school Friday until the commencement of school Monday (or Tuesday if the Monday is a public holiday or a student free day) each alternate weekend being the first weekend after the start of each school term if the children lived with their mother for the second half of the previous school holiday period, or the second Friday after the commencement of school term if the children live with their father for the second half of the previous school holiday period. In this respect of this order Easter in each year shall be regarded as a school holiday period;
(k)that in respect of the time the children shall live with the father on alternate weekends during school term, that in respect of the second and fourth such alternate weekends that the children live with the father, and notwithstanding these orders, the children shall reside with the father from the Friday after school at the commencement of such alternate weekend time until the commencement of school the following Friday.
Unfortunately there was some technical problem with the transcription of my reasons which were delivered on 17 November 2006. They were only partly transcribed. The parties became aware of that circumstance when the matter came before me again in February 2008 (about fifteen months after the final orders were made).
For the purpose of these proceedings I had, earlier this year, requested of counsel for both parties that they provide hand written notes of what was said by me on 17 November 2006.
Those notes were prepared by the mother’s counsel, Ms Trezise[2] and by the father’s previous counsel, Mr Welch.[3] I have directed that these notes be attached to the incomplete transcript of my earlier reasons as I am satisfied that they provide detail of the reasons delivered at that time.
[2] Exhibit 1.
[3] Exhibit 2.
I had also examined my bench book but there were no clear notes of the reasons sufficient for me to add to the existing material.
The father has not accepted the 2006 determination. In his affidavit filed
12 February 2010 he says the following:-35.Regrettably [emphasis added] this Court ordered the children spend less time with me, notwithstanding the recommendations in the Family Report.
36.Since the Family Report and the Orders dated 17 November 2006 the children have not ever resiled from telling me that they want to spend more time with me.
37.Following are some dates and conversations the children have had with me:
…
The father goes on to give evidence of conversations he claims he has had with the children in relation to parenting time. It is clear from the father’s material that the question of equal time has been the subject of significant discussion between him and the children. On the father’s evidence, I am satisfied that they are, to some degree at least, conversations which he encourages either explicitly or implicitly.
On 11 February 2008 the mother commenced proceedings. In those proceedings the mother sought orders that the father’s time with the children be suspended and that the mother be permitted to refer L and E to a particular psychologist.
The father filed a response to that application, opposing parts of it and sought further orders in relation to the children that they spend equal time with him during school term.
That application was dealt with by me on 26 February 2008 when I made orders permitting the mother to take the children to see Mr V and adjourned these proceedings. All applications in a case [emphasis added] were otherwise dismissed and costs were reserved.
There was also an issue between the parties at that time in respect of the children’s contact with their maternal grandmother and her partner. Orders were made that the children not be brought into contact with these members of their family without agreement of their families or leave of the Court.
The parties were then directed to attend a Family Relationships Centre or other mediation.
As a consequence of that order the parties attended mediation sessions between March 2008 and November 2009. They reached an agreement with regard to the children seeing their maternal grandmother and her husband. The parties entered into an agreement in that regard[4].
[4] Annexure A to affidavit of the mother filed 2 August 2010.
When these proceedings were argued before me on 4 August 2010 the parties sought, and I made an order discharging the restraint on the parties bringing the children into contact with their material grandmother and her husband. This was no longer an issue between the parties.
The February 2008 primary application lay dormant in the Court from February 2008 until the father filed an amended response on 11 February 2010 supported by an affidavit. In reply to that response the mother filed an amended application for final orders on 22 March 2010 seeking orders that the proceedings be dismissed and that the father pay the mother’s costs of the proceedings.
During the course of submissions I made available to the parties’ legal practitioners parts of a paper prepared by Jennifer McIntosh, Bruch Smyth, Margaret Kelleher, Yvonne Wells and Carolyn Long for the Attorney General in May 2010.[5] I did this because what is clear is that there are high levels of conflict existing between the parties. The parties’ communications, on their evidence, is not good and they do not avoid conflict.
[5] “Post Separation Parenting Arrangements and Developmental Outcomes for Infants and Children” – May 2010.
From their affidavits it is clear the parties each have different parenting styles and there is an issue as to the adequate ego maturity of both parties.
In the McIntosh paper the authors observed and I accept that:-
Litigating and high conflict families who entered substantially shared care arrangements are different from co-operative parents who self select in shared parenting. They enter on a different track, stay on track by different means and different outcomes[6].
Children in conflicted shared parenting are exposed to high levels of conflict between their parents, of a type that embroils them in or uses them in the expression of conflict between the parents. These children are frequently distressed by the living arrangements[7].
[6] Ibid at page 104.
[7] Ibid.
It is clear from the evidence of the father (if it were wholly accepted on hearing) that the children in this case are embroiled in the conflict and are frequently distressed by their living arrangements. I am satisfied that the history is one which would be likely to predicate against shared parenting.
The father says that the children express very strong views about equal time. The mother says that they do not and that the father embroils the children in the conflict and has done so over many years.
I need to look at the father’s evidence at best and I do not make a determination at this stage. If the proceedings continue they are unlikely to receive any expedition as the essence of the change sought by the father is relatively small and there are few issues which would give this matter priority over proceedings such as Magellan or other proceedings which are in the list waiting to be heard. It is likely not to be heard for between eight months and eighteen months.
The children would be again embroiled in proceedings in that (bearing in mind the age and maturity of the children and the issue about their views) it is likely that an Independent Children’s Lawyer would need to be appointed. Having regard to the apparent circumstances of the parties they would need to meet the cost of that Independent Children’s Lawyer. A Family Report would need to be prepared.
The children attend Z School in Launceston. The parties invited me to inspect that school calendar on line which I did. That calendar discloses:-
Term 1 commenced Tuesday 9 February 2010 and concluded on Thursday 1 April 2010 for Easter.
Term 1 recommenced on Monday 12 April 2010 and concluded on Friday 21 May 2010.
Term 2 commenced on Wednesday 16 June 2010 and concluded on Friday 3 September 2010.
Term 3 commenced Tuesday 21 September 2010 and concluded on Wednesday 15 December 2010.
The number of nights in dispute is not significant in real terms except as to the fixed view of the father that equal time is the best outcome. The significance is in the desire of the father and perhaps the children to go to equal time and a different pattern of time.
Such a process will engage the children in the conflict (as I have indicated above) and will engage the parties in a year or more of continuing acrimony and conflict with the attendant emotional and financial cost.
In essence what the father is seeking is a different pattern which will mean the children will spend one additional night per week with the father during school term. It is an enormous impact with a relatively minor change.
Division 12A of PartVII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of principals for the conduct of child related proceedings. These include the following.
Section 69ZN(3)
The first principal is that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Section 69ZN(6)
The fourth principal is that the proceedings are, as far as possible, to be conducted in a way that will promote co-operative and child focused parenting by the parties.
Section 69ZQ
This provides that giving effect to the provisions the Court must decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily.
THE RELEVANT LEGAL PRINICPLES
As I said in Cook & Tracey [2008] FamCA 74, a statement of the relevant law is contained in the Full Court’s decision of F & C [2004] FamCA 568, where Kay, Warnick and O’Ryan JJ said:-
36. The Family Law Act 1975 provides in s65D that in proceedings for a parenting order, the court may make such parenting order as it thinks proper and that a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.
37. There are no guidelines or requirements contained in the Act as to when a court may refuse to entertain an application for the variation of an existing order, nor the matters that a court should consider in determining whether or not to entertain an application for the variation of an existing order, nor the matters that a court should consider in determining whether or not to exercise its jurisdiction (c/f s 83(2) – requirements to be satisfied before varying a maintenance order).
The principles in relation to the protection of children from involvement in unnecessary litigation are identified by the Full Court in Rice v Asplund (supra) where the Court stated:-[8]
… The court should have regard to any earlier order and to the reasons for and the 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 for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., 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 which should have been material (passage quoted in Hayman and Hayman (Supra) at p.75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of fact that there are circumstances which require the court to consider afresh how the welfare of the child could best be served. These principals apply whether the original order is made by consent or after a contested hearing. The way that they apply and the factors which will justify the Court in reviewing a custody order will vary from case to case.
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way. The court must apply the principles of sec. 64 and weigh up the factors for and against the proposals of each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the court, and the reasons for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the court should give weight to any earlier decision and, in particular, to any finding of fact, the judge is not bound by the earlier court’s assessment of the parties or views as to the best interest of the child.
…
[8] At 78,905.
This decision has been affirmed in a number of cases and the general principle is that a fresh application for parenting orders should only be entertained by the court where there is a significant or substantial change in circumstances. In D & Y (1995) FLC 92-581 at 81,764 the Full Court held that a trial judge has discretion to determine whether there is a change in circumstances as a preliminary issue or to proceed to a full hearing.
In King v Finneran (2001) FLC 93-079; Collier J, when determining an appeal from a Federal Magistrate, held that the amendments to the Family Law Act 1975 (Cth) in 1995 requiring a full inquiry of the matters set out in s 68F do not disturb the trial judge’s discretion to make a threshold determination whether to proceed to a full hearing, and stated at 88,367:-
41.The rule in Rice and Asplund is a rule evolved to protect children from the involvement in further unnecessary litigation. To require a court to make a detailed determination of the matters set out in section 68F would defeat the purpose of that protection. It would mean that before the matter could be dealt with, a complete hearing, or …at least a hearing dealing with the section 68F factors, would have to be undertaken and completed.”
42. A judge or magistrate exercising jurisdiction under the Family Law Act is not required to undertake the exercise of identification and evaluation that the father urges. To do so would be to abolish for all effective purposes the opportunity of a court to make a threshold determination in cases where such an early end to the litigation was the best result for the children.
43. …It is clear that a trial judge has a discretion as to whether or not to deal with the matter at a threshold level or to embark upon a full hearing (see Bennett and Bennett (1991) FLC 92-191.
44. To apply the test in Rice and Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision. This is not always a clear distinction.
…
49.Clearly, both words [‘significant’ and ‘substantial’] indicate something out of the ordinary course of events. To be either significant or substantial is to indicate that a matter is of importance, of consequence, of real worth, of ample or considerable amount, quantity, size etc. When related to a change in circumstances, this clearly requires that the change or changes relied upon must be of consequence and must be more than that which would occur by the passage of time or in the usual course of human activity.
50. … In D and Y (1995) FLC 92-581 their Honours of the Full Court made a finding that a trial judge has discretion whether to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing. Their Honours indicated that in the circumstances that prevailed in that case, that is, a nine day hearing a little more than two years previously, that a judge would be extremely loath to reopen the issue of custody, except on strong grounds. The word strong in that case is a departure from substantial or significant as used in earlier cases. It indicates clearly what is required. The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to re-litigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.
…
62. What is required is that a trial judge be satisfied that there has been demonstrated such a change that it must be a matter of concern and requires the court to examine the situation of the children afresh. There is no assistance to be gained from the authorities as to whether or not this can be done cumulatively. The law at present requires that there be a change such as to require re-litigation. That change can be made up of component parts or could rely on one single but major change. However, a cumulative basis for change in circumstances cannot be made simply by weight of numbers of the changes alleged to have occurred.
…
64. … the purpose of the rule is to protect the children from exposure to further unnecessary litigation.
In CDJ v VAJ (1998) 197 CLR 172 the High Court determined an appeal concerning the circumstances in which a Court might admit further evidence in parenting cases, and I have had regard to those principles, which are outlined earlier in these reasons.
In Bolitho and Cohen (2005) FLC 93-224; Bryant CJ, May and Boland JJ agreed with and adopted the principles set out by Collier J in King and Finneran (supra) and held that the trial judge had appropriately applied the relevant principles by identifying the changes in circumstances, which included the children’s wishes, the children’s maturity to express such wishes, the children’s relationship with the mother and their poor school performance. There was no error of principle or basis for the submission that it was inappropriate for the trial judge to reconsider the parenting orders or that he failed to give sufficient reasons for his decision to do so.
I also particularly note the comments of Atobelli FM in P & S(No. 2) [2007] FMCAfam 1039; who said :-
5.… The rule in Rice & Asplund is not an exception to the principle contained in s.60CA of the Act that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. Rather that the rule being an exception to the paramountcy principle, it is in fact, a manifestation of it. The impact of conflict on children is well documented.”
6.As the Full Court said in Rice v Asplund itself, “change is an ever present factor in human affairs.” Having regard to the impact on children of litigation concerning them, the change must be significant indeed. The benefits to them of revisiting the orders have to be substantial in order to justify exposing them to further litigation between their parents.
I have had regard to s 69ZN of the Act. Section 69ZN sets out principles for conducting child related proceedings. Those principles include a requirement that the Court is to consider the needs of the child concerned and the impact the sittings may have on the child in determining the conduct of the proceedings. The subsection provides:-
Section 69ZN(1) The court must give effect to the principles in this section:
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
(b)in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
…
Section 69ZN(3) Principle 1 The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
…
The principle set out in ss 69ZN(3) imposes an obligation on courts to look at the impact that the proceedings may have on a child. The principle must also apply to the serious question of rehearing children’s cases with the consequent impact on the child or children.
DISCUSSION
The father effectively argued four points. In the first point his counsel took me to Rice v Asplund (supra) and re-iterated the principals contained in pages 78,905 and 78,906. There was no factor undisclosed at the previous hearing.
Counsel for the father submitted that the father was entitled to understand the material on which the order was based. That was contained in the reasons which were not transcribed.
However, with the assistance of counsel a clear description of the reasons has now been obtained. Whilst the transcript is not “word perfect” the reasons are clear as are the findings. Counsel for the father agreed that his argument was somewhat weakened by provision of this material by consent.
I am not satisfied that the father did not understand the material upon which the orders were based. He makes it clear in his affidavit that he heard my reasons and that the issue of the children’s views, at that time, were discussed and weight was given to them. However, such weight was not sufficient to put in place the orders that the father sought. I do not accept his submissions in respect of the first point.
The second argument raised by counsel for the father was that it was dangerous for a court to dismiss the application at this time as the views of the children have not been brought before the Court. He said the children, on the evidence of the father, are troubled by the order and they need to have their say. This is the same argument as raised in 2006 and as was raised in 2008. It is not a new argument although the children have much more maturity than they did about four years ago.
Counsel for the father took me to Marsden v Winch [2009] FamCAFC 152. In particular he took me to paragraph 53 of those reasons where the Full Court approved a comment by Wilson FM and Cortes & Cabrera [2007] FMCAfam 293 at [19]:-
An applicant’s material might raise the suggestion that there is a change to the circumstance which requires investigation but after reading the respondent’s material the court might be satisfied there is nothing in the point raised
Thus, the father’s counsel was arguing that the views of the children need to be ascertained. In this case there is a conflict as to the views of the children. However, taking the evidence of the father at the best, the children have expressed strong views and have continued to do so for many years. Whilst the maturity of the children’s views must be seen in the context of the years that have passed. The change sought by the father is relatively minor. The impact on the children will be substantial. They will (along with their parents) be embroiled in litigation for another year or more.
The children will need to undergo further investigation with the Family Consultant, and the children will be well aware that the proceedings are coming for hearing before a Judge.
It was submitted that the court should await the assessment or investigation before determining this application as the application itself was premature. I am not satisfied in the circumstances of this case that the application is premature.
The third point raised by counsel for the father is that whilst the underlying factor, that is, the father’s belief that the views of the children have remained constant, they must be seen in the context of the children’s maturity. The conflict has continued and the orders did not resolve the conflict according to the father. These mature views of the children ought to be tested by way of a hearing.
The problem with that argument is that it engages the children in a continuation of the litigation. This litigation commenced in 2004 and was finally determined at the end of 2006. There was a respite during 2007 and then in 2008 it started again.
Here we are, in February 2010 with proceedings on foot again. The proceedings will continue for another twelve months, perhaps slightly more or slightly less. I have real concerns about the impact of those proceedings on the children. They should not be forced to endure yet more months if not years of litigation.
The final point raised by counsel for the father was that it was the mother who commenced these proceedings. I accept his submissions in that regard however the issues which she raised were two narrow issues which were both initially resolved by determination by me in February 2008 and then in regard to the maternal grandmother by negotiation and consent orders. They do not relate to the underlying issue raised by the father as to the views of the children.
I have had regard to the children’s wishes set out in paragraphs 32 to 61 of the father’s affidavit and I have considered the days referred to earlier.
In R&BH [2006] FamCA 919 [32] the Full Court approved of the comments of Collier J in King and Finneran where he said:
… The change or fresh circumstances must be such that upon being advised of it, and being satisfied of its existence, a court would be left in no doubt that it was necessary to re-litigate the parenting issues in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstances would result in a change to the orders. It merely indicates that the change or fresh circumstances must be such that if taking into account there is a real likelihood that change may follow.
In this case there is not a real likelihood that a change would follow and even if a change did follow it is of such an effectively limited scope as to not warrant the imposition of further litigation upon this family and in particular the children.
I am satisfied, seeing the father’s evidence in the best possible light, that the father’s prospects of success, bearing in mind the indicia for equal time are somewhat limited and even if it was successful the overall change is so effectively small as to not justify the necessity of another trial.
The parties have remained in conflict since separation. Rather than resolve the conflict the orders made by me in November 2006 simply increased the conflict and the father has continued to discuss his “regret” at the decision with regards to the children. This is irrespective as to whether the conversation arose at the request of the children or by the father.
As such the mother’s application to have the proceedings dismissed pursuant to the principal in Rice v Asplund (supra) is successful. I will dismiss the applications.
I certify that the preceding sixty six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on the 10 September 2010.
Associate: G Doyle
Date: 10 September 2010
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