WILDE & WILDE

[2016] FCCA 944

FEDERAL CIRCUIT COURT OF AUSTRALIA

WILDE & WILDE [2016] FCCA 944

Catchwords:
FAMILY LAW – Parenting orders – Rice v Asplund issue – whether Orders for unaccompanied travel should be revisited – evidence about changed circumstances – where the Court has concerns about appropriateness of ongoing Orders.

Legislation:

Family Law Act 1975

Carriel & Lendrum (2015) FLC 93-640
CDW & LVE [2015] WASCA 247
Marsden & Winch (2009) 42 Fam LR 1
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363
Walter & Walter [2016] FamCAFC 56

Applicant: MS WILDE

Respondent: MR WILDE

File Number: SYC 1007 of 2012

Judgment of: Judge Altobelli

Hearing date: 7 April 2016

Date of Last Submission: 7 April 2016

Delivered at: Wollongong

Delivered on: 11 May 2016

REPRESENTATION

Solicitors for the Applicant: Lukes Law

Solicitors for the Respondent: Watson & Watson Solicitors

ORDERS

1. The Father’s Application for dismissal pursuant to Rice & Asplund (1979) FLC 90-725is dismissed.

2. The matter be adjourned to 13 July 2016 at 9:30am for Mention.

IT IS NOTED that publication of this judgment under the pseudonym Wilde & Wilde is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

SYC 1007 of 2012

MS WILDE

Applicant

And

MR WILDE

Respondent

REASONS FOR JUDGMENT

Introduction

1. These Reasons for Judgment explain the Orders that the Court has made in relation to the child, X, born (omitted) 2007 (‘the child’).  X is 8 years old.  His parents commenced litigation about him in 2012 and, indeed, the present issue before the Court is whether the parents should be allowed to litigate further.  X’s mother is the Applicant and his father is the Respondent. 

Background

1. On 19 October 2015 the Mother filed her present Application seeking to vary the existing Orders in relation to X, which were made as Final Orders, and by consent, on 27 September 2012.  By way of his Response filed 4 December 2012, the Father seeks Orders dismissing the Mother’s Application.  The present matter is what is commonly known as a Rice & Asplund application.  The Court has to decide whether the Mother should be permitted to continue with her proceedings, or whether they should, in effect, be summarily dismissed. 

2. By way of background, the Father is 49 years old and currently lives and works in (country omitted).  The Mother is 49 years old and lives in the (omitted) region of New South Wales.  They commenced cohabitation in 2003, married in 2005, and separated in January 2011.  X and his mother returned to Australia in February 2011.  The first set of proceedings in relation to X commenced in 2012 in the Family Court of Australia at Sydney.  Final orders were made by consent both in relation to property and parenting matters on 27 September 2012. 

3. The parameters of the present dispute are defined by reference to the precise Orders that the Mother seeks to vary.  In some respects, the parameters are quite narrow as the Mother only seeks to vary Orders 22.1 and 22.2 of the Final Orders.  That does not mean, however, that the issues in question are not significant.  The main issue is whether X should be able to travel unaccompanied, both when travelling within Australia, and when travelling internationally.  In short, the 2012 Orders state that when he turns 8, he is able to travel unaccompanied within Australia, and when he is 10 years of age, internationally.

4. Order 22.1 of the current Orders provide that until X attains the age of 8 years, which was in 2015, he would spend time with his father, when the latter is in Sydney, for up to 10 weekends each year.  In addition, he would spend time with his father for half of the school holiday periods at the end of terms 1, 2 and 3 and, for this purpose, X is permitted to travel to any location within Australia for such holiday provided his father accompanies him.  In addition, X could spend time with his father for 9 days during each of the Christmas school holidays where the Father lives, provided the Mother accompanies X on the journey, the Father pays the costs of airfares for X, the Mother, and accommodation. 

5. The Mother’s proposal in relation to order 22.1 is that the age of 16 be substituted for the age of 8 years in that order. 

6. Existing order 22.2 provides that once X attains the age of 8 years, he would again spend up to 10 weekends each year with his father whenever the latter is in Sydney, half of each of the school holidays at the end of terms 1, 2 and 3 either within or outside of Australia, half of the Christmas holiday either in, or outside of Australia, but if it is outside of Australia, for no more than 14 days.  Order 22.2  does not provide for X to be accompanied in his travel either within, or outside of Australia. 

7. The Order that the Mother proposes in relation to order 22.2 is that it commence at age 16, rather than at age 8. 

8. A further Order that the Mother sought was that during the Father’s time with X, until X turns 16, the Father is to ensure that X is always supervised by the Father and that the Father accompanies X into any public bathroom if X needs to use the toilet and stays with X (but not in the cubicle) until he has finished in the bathroom.  The reasons for this will become apparent below.  The Court formed the impression that this was not a contentious issue from the Father’s perspective.

9. Another Order that should be noted for present purposes is order 24 of the existing Orders.  It requires the Father to accompany X on all overseas air travel between the time X attains the age of 8, until he attains the age of 10.  Thereafter, he would be permitted to travel as an unaccompanied minor (subject to airline regulations) from the age of 10.  In addition, X be permitted to travel on domestic flights within Australia accompanied by a responsible adult until 8, but unaccompanied from age eight. 

10. The interaction between the Mother’s proposed amendments to Orders 22.1 and 22.2 on the one hand, and Order 24 of the existing Orders, was not fully explored in submissions.  As it turns out, that does not impact on the Court’s decision. 

11. It becomes apparent, therefore, that the focal point of the Mother’s Application was her concern that, because of circumstances pertaining to X, since the Consent Orders were first made in 2012, it is no longer in his best interests that he travel as an unaccompanied minor whether domestically, or internationally.

The Evidence

1. In the Mother’s case her solicitor provided a very useful case outline.  The Mother’s case relied on her affidavits affirmed on 16 October 2015, and 19 March 2016.

2. In the Father’s case, his Counsel also prepared a very useful case outline.  This document annexed a number of other documents in respect of which no objection was taken.  The Father relied on his affidavit sworn 30 March 2016. 

Chronology

1. The Mother’s case outline document contained a useful chronology which is reproduced in the first schedule below.  It does not differ in any significant way from the chronology prepared by the father’s counsel.  The Court has chosen to reproduce the mother’s chronology, however, as the format is much clearer.

The Cases Summarised

1. In very simple terms, and without doing her case justice, the Mother submits that there has been such a change in X’s circumstances that it is in his best interests that the existing Orders be varied.  She submits that whilst it is true to say that X had already been exposed at least once to inappropriate sexual conduct, and whilst it was also true to say that before the Orders the parents knew that X suffered from aspects of developmental delay, that events after the Orders are significant enough to raise concerns about how, in effect, he would cope with the arrangements that his parents agreed to in 2012.  She says that the fact that X was again sexually abused in February 2014, and that his developmental delays have become better understood and diagnosed as Attention Deficit Hyperactivity Disorder (ADHD) and Autism, are sufficient changes in his circumstances to warrant revisiting the Orders within the relatively narrow ambit of the changes she postulates.

2. The Father’s case, again briefly stated and without doing justice to it, is that a close examination of the evidence before the Court indicates that X’s circumstances have not, in fact changed.  He was experiencing developmental issues before the Orders were made, and continues to do so.  The sexual abuse to which he was exposed after the Orders were made is tragic, but does not of itself constitute a changed circumstance.  Indeed, the Father contends that the real issue in this case is the Mother’s anxiety and a reluctance to properly support X’s relationship with his father.  An example of this is the Father’s successful Contravention Application filed on 4 September 2015, which resulted in Watts J in the Family Court of Australia at Sydney finding that the Mother had, without reasonable excuse, contravened Order 22.2B of the 2012 Orders. 

The Applicable Law

1. The Full Court has recently (14 April 2006) delivered a judgment in a Rice & Asplund application.  In Walter & Walter [2016] FamCAFC 56 Ainslie-Wallace J referred to the relevant legal principles at paragraphs 48-50:

   In Rice & Asplund (1979) FLC 90-725 Evatt CJ said at [78,905]:

   The principles which, in my view, should apply in such cases are that 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…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 would have been material …

   In discussing the application of those principles, the Full Court said in Marsden & Winch (2009) 42 Fam LR 1:

   50.    Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:

   (1)    The past circumstances, including the reasons for the decision and the evidence upon which it was based.

   (2)    Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.

   (3)    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.

   In Carriel & Lendrum (2015) FLC 93-640, the Full Court said at 80,173:

   57.    In a case where the principle in Rice & Asplund arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child/ren at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child/ren whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.

2. Her Honour also confirmed at paragraph 51 that where the question of whether a sufficient change in circumstances has occurred is to be determined as the preliminary matter to the hearing of the Application, it is accepted that the Applicant’s evidence should be taken at its highest.  Indeed, in the present Application before this Court, it was agreed between the parties that the Rice & Asplund issue would be dealt with as a preliminary matter and on the papers. 

3. Murphy J agreed with Ainslie-Wallace J that the appeal should be dismissed.  At paragraph 85 of His Honour’s reasons he refers to the decision of Martin CJ of the West Australian Supreme Court in CDW & LVE [2015] WASCA 247 at [88]:

   In that respect, it has been held recently that:

   … Plainly a circumstance can only constitute a relevant 'change' if it is a circumstance which was outside or beyond the contemplation or consideration of the parties and the court at the time the original parenting orders were made. Put another way, if the current circumstances were within the contemplation of the parties and were considered by the court at the time the original parenting orders were made, there is no basis upon which they can be said to constitute a change which would justify the prospect of continuing litigation with respect to parenting arrangements, given the adverse effect which uncertainty and unpredictability with respect to parenting arrangements can be assumed to have upon the interests of the child concerned…

4. At paragraph 96 of the reasons for judgment of Murphy J he refers to comments made by Warnick J in SPS & PLS (2008) FLC 93-363:

   Warnick J said in SPS that “[w]hat the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing”. Importantly, his Honour went on to say that “… [a]ccordingly, the rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes”

5. The comments referred to above are particularly pertinent in the present Application where, in substance, the question for the Court is whether the changed circumstances suggest that X could not cope with the travel arrangements that his parents thought he could cope with at the time the Consent Orders were made in 2012.

6. This Court believes that this is “a short and narrow inquiry”.  In other words, as foreshadowed earlier in these reasons, the Rice & Asplund application needs to be considered within the parameters of the changes that the Mother proposes.  The Mother is not, it should be noted, seeking to relitigate the issue of how much time X spends with his father, but rather the issue is whether, given the changes that she asserts have occurred since the original Orders, it is in X’s best interests that he travel unaccompanied.

7. At paragraph 102 of the reasons for judgment in Walter, Murphy J confirmed that not only can the rule in Rice & Asplund be applied at the outset of the proceeding, or at the end of a hearing, but that “the rule might also be applied at any point between the two”.  The example that he refers to is after receipt of a Family Report or, indeed, any other expert evidence.  Thus, a Court might allow proceedings to continue up to a specific point, such as the receipt of further expert evidence, and then review the situation in terms of changed circumstance and best interests of the child.

8. At paragraph 110 of Walter, Murphy J restates what he describes in that paragraph as “the notorious fact” which he states is accepted both by authority and in the arguments presented before him.  The notorious fact is that “continued litigation and the re-agitation of contested issues about children has the potential to cause significant harm to them.”

9. At paragraphs 113 and 115, Murphy J also makes some important observations:

   It should also be pointed out (as it was by this Court in Miller & Harrington), that the relevant discretions must now be exercised within the mandatory principles and other provisions contained within Division 12A of the Act. In that respect two of the mandatory principles which must be applied by a court by reference to s 69ZN of the Act bear quotation:

   (3)    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.

   (4)    The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.

   Secondly, again contrary to Mr North’s submissions, it is in my view not correct to characterise his Honour’s actions or decisions as a failure or refusal to exercise jurisdiction in proceedings for parenting orders properly invoked by the mother. The refusal by his Honour to contemplate the obtaining of a Family Report (or, perhaps, other evidence) so as to inform the rule at a preliminary stage was not a failure of judicial process but a discretionary decision performed within a mandatory statutory context and arrived at by reference to the children’s best interests for reasons which his Honour gave.

10. Thus, it seems clear that even where the evidence demonstrates a material change since the previous Order, a Court may well be entitled to nonetheless find that it is not in the best interests of a child for the proceedings to continue.  Does the corollary apply?  In other words, even if the Court finds that there is not a material change since the previous Order, can the Court nonetheless find that it is in the best interests of the child for the Orders to be revisited?

11. This Court believes that the answer is, probably, yes.  The Court’s statutory responsibility to make Orders in the best interests of the child cannot, as a matter of law, be fettered by any agreement between the parents as to what they consider to be in the best interests of their child at a particular time.  There are obviously good reasons why, in many cases, perhaps in the vast majority of cases, a Court would not readily intervene in those circumstances.  That is not to say that the Court does not have the power to do so.

Has there been a sufficient change of circumstances?

1. The answer to the question is not an inquiry at large, but rather is circumscribed by the parameters set by the Mother’s Application.  The focus of the proposed changes is unaccompanied travel.  In 2012, the parents clearly contemplated that X would be able to travel as an unaccompanied minor from age 8, domestically, and age 10 internationally.  In each case, unaccompanied travel would need to be subject to airline regulations, a matter that is explicitly recognised in parts of the Orders that they agreed to.  Has anything changed since 2012 which would warrant a revisitation of the parents’ agreement at that time?

2. The Mother’s evidence needs to be accepted at its highest in this regard. In her affidavits of 16 October 2015 and 19 March 2016, she annexes quite a substantial volume of documents that provide the Court with information about X both before, and after the Consent Orders were made.

3. These reports actually tell the Court quite a lot about X.  Again, the Court emphasises that the issue is unaccompanied travel so the Court’s focus in examining this evidence is to look at what insight, if any, is given about X’s capacity to undertake unaccompanied travel.  In her report dated 25 August 2011, Dr V, a developmental Paediatrician at the (omitted) Hospital described X as a boy who “liked to set the agenda and was reluctant to follow one imposed upon him.”  Ms W, a Speech Pathologist, conducted assessments on X on 30 January 2012, and 6 February 2012. She said that:  “X presents with a communication delay characterised by ineffective listening skills and delayed expressive language skills”.  Ms W conducted a subsequent assessment on 21 and 28 May 2012.  This time, she concluded: 

   “X presents with a severe communication disorder.  His ability to understand and follow instructions is reduced as the length and complexity of information increases.  In particular, X found it difficult to attend to more than one piece of verbal information at a time.”

1. On 3 September 2012, Dr K, a consultant Developmental Paediatrician reported on X, as a result of having seen him twice in August and once in September 2012.  She reported that “X’s articulation was poor making his language a little difficult to understand at times.”  She concluded that he had “significantly delayed language development, which is part of a more global developmental delay.”  She stated:  “X has a very high level of active and impulsive behaviours with poor emotional regulation which could be the result of immaturity or may be indicative of an attention deficit/hyperactivity disorder.”

2. On 1 November 2012, Ms A, a Clinical Psychologist, provided a report based on 2 assessments she conducted on X in September 2012.  She observed that the assessment “was characterised by an initial lack of cooperation and a degree of rigidity”.  She observed X’s signs of impulsivity and that it was only “when firm instructions were given, X was able to comply.”

3. Despite a significant degree of restlessness, X remained in his chair for most of the time and was able to complete all of the tasks put to him.  Her summary states as follows:

   “X is a sweet five year old boy with a history of developmental delay and severe language difficulties.  He also presents with deficits in social interaction and self-regulatory skills, in addition to displaying impulsivity and relatively poor attention and focus.  Diagnostically, he is difficult to categorise.  X has responded reasonably well to early interventions that have been put in place and is developing socially.  Whilst his cognitive profile is similar to that of children on the autism spectrum, X demonstrated a willingness to engage socially and there were no indications of stereotypic or repetitive mannerisms or scripted language.  His inconsistent performances and poor emotional regulation and frustration tolerance are suggestive of an attention deficit disorder in the presence of a significant language disorder.  At this point in time, X presents with cognitive deficits in both the verbal and non-verbal domains that are consistent with significant global developmental delay.”

4. The Court observes that, notwithstanding the formidable array of reports pointing to the developmental and communication challenges experienced by X, both of his parents nonetheless believed, as at 27 September 2012, that he could cope, in the fullness of time, with unaccompanied travel from what was then between Sydney and (country omitted), where his father was then living.  With hindsight, which is, of course, always perfect, one wonders how the parents could have concluded that X could have travelled even on what one assumes was a direct flight between Sydney and (country omitted) as an unaccompanied minor?  Perhaps they were optimistic about his future progression in terms of his developmental issues?

5. Annexed to the Mother’s affidavit of 19 March 2016 is much more recent medical evidence which, she submits, demonstrate the significantly changed circumstances that X experiences.

6. Dr B is a consultant Paediatrician who provides a report dated 11 February 2016.  Dr B observed that X struggled to read facial cues and misinterpreted social situations.  He struggles to follow instructions.  Dr B noted the school counsellor’s report following an assessment on 28 October 2015 which recorded X’s difficulty following instructions and to initiate conversations with others, especially having difficulty retrieving words to explain his ideas.

7. On examination he was found to be a very fidgety boy who spent very limited time on tabletop activities, despite directions from the clinician, and declined to complete simple academic tasks; “He had limited attention span as he constantly moved from one activity to another.”  He was found to experience “severe expressive and receptive language delay”.  Dr B was of the view that X “has low average cognitive ability and he also meets the DSM-V criteria for attention deficit hyperactivity disorder (ADHD)”.

8. Ms A is a clinical Psychologist who provided a report dated 18 February 2016.  She observed that, “X rarely offered personal information regarding his thoughts, feelings or experiences, nor did he express an interest in mine (not following up on leads).  There was little reciprocal conversation sustained by X, rather he tended to follow his own train of thought.”

9. Ms C was X’s teacher in 2015.  She provided a report dated 15 December 2015 in which she stated, amongst other things, that X “finds it very difficult to follow instructions”.  She noted that even after X benefited from the receipt of extra support in the classroom, something recommended in earlier assessments, “he does still struggle when following instruction.”

10. The letter from the relieving principal of X’s school, (omitted) Public School, dated 11 March 2016 indicates that he was suspended from school for aggressive behaviour.  The letter records that at school during lunch that day X punched another student in the face.  He was suspended for 4 school days.

11. The Mother annexes to her affidavit a copy of the Child Responsive Program Memorandum prepared by Family Consultant F and dated 16 May 2012.  Ms F observed X.  She explained that he was not interviewed separately “because of his young age and his apparent learning and mild speech problems.”  She sets out that X did not initially respond to her, but became more engaged as time went by.  What is of interest, and relevant, in the present context, is Ms F’s description of X as having “mild” speech problems.  This is in strong contrast, for example, to Dr B’s assessment on 11 February 2016 which described a “severe expressive and receptive language delay.” 

Discussion of the Evidence

1. That the Mother is anxious about the issues before the Court is self-evident.  That is, however, an irrelevant consideration in the present context.

2. That the Mother contravened the 2012 orders is a fact established on the evidence.  Indeed, His Honour, Justice Watts made a number of observations of the Mother at paragraphs 12, and 17 of his Reasons for Judgment.  Whether the Mother felt that she had a reasonable excuse for contravening the Orders, or not, is quite irrelevant to the present issue before the Court.  The question to be determined in the present proceedings is quite different to the issue that confronted Watts J in the Contravention Application.

3. At the time that the parents entered into the Consent Orders on 27 September  2012, it is clear that they either knew, or should reasonably have known, that X had special needs which had to be taken into account in formulating the minutiae of Orders relating to his time with his father.  At the time the Orders were made, they clearly did not have the psychological assessment report prepared by Ms A, but they did have reports which suggested he had a severe communication disorder which impacted on his ability to follow instructions.  They knew that he had significantly delayed language development which was part of a more global development delay.  They knew that he had a very high level of active and impulsive behaviours with poor emotional regulation which could be the result of immaturity or may be indicative of an attention deficit/hyperactivity disorder.

4. One question the Court asks itself in the present context is whether, after the Consent Orders were made, the parents became aware of further medical information which merely confirmed what they already knew, or should have known about their son, or whether they received new information that warranted, on an objective basis, a revaluation of whether their 2012 Consent Orders were still in their son’s best interests?

5. The medical evidence discussed above in the post Consent Order period certainly contains much acknowledgement of existing knowledge.  It is significant, however, to understand that when he started a school, he was provided extra support in the classroom, but that does not appear to have assisted in managing his behaviour.  The consistent theme is difficulty in following instructions.  Another theme was lack of ability to communicate thoughts, feelings or experiences.  In addition, attention deficit hyperactivity disorder was clearly diagnosed.

6. In some cases it is a fine line that separates change, from the natural progression or evolution of an existing circumstance.  The present facts suggest that some things did, in fact, change, for example, a formal diagnosis was made.  In many other respects, however, X’s behaviour in more recent times is an evolution or progression of his pre-existing behaviour.

7. In Rice & Asplund (1979) FLC 90-725, Evatt CJ referred to the reality that “change is an ever-present factor in human affairs.” If that broad brush approach were applied to this case, there is no new factor which would warrant revisiting the existing Orders.

8. The Full Court in Marsden v Winch in the passage referred to earlier in these reasons at paragraph 18, invites the Court to consider not just the magnitude of the variation proposed by the mother in this case, but also invites the Court to assess the nature of the likely changes as against the potential detriment to the child caused by litigation itself.  The dilemma that is presented in this case, however, is the potential detriment to the child of not revisiting this issue in litigation.  The question that the Court asks itself, therefore, in this case, is whether the existing Orders could possibly be in X’s best interests, in the circumstances where there is information before the Court that casts a doubt upon the appropriateness of X travelling as an unaccompanied minor?  One wonders whether that was appropriate at a time when his father was working in (country omitted) where, it would seem on the parties’ evidence, there were direct flights between Sydney and (country omitted).  Now that the Father lives in (country omitted), the evidence suggests that not only is this a longer journey, but there is the prospect of a stopover which, the Court is prepared to accept, adds to the logistical complexity of a journey for an unaccompanied minor, let alone a minor who has been diagnosed as having a global development delay and attention deficit hyperactivity disorder.

9. It is unfortunate that the parties did not lead further evidence about what would be involved, precisely, in X travelling as an unaccompanied minor whether domestically, or internationally.  This is an important gap in the evidence, from the Court’s perspective.  It is all left to reasonable inference.  The Court can only rely on its experience derived in other cases.  Thus, for example, when the term “unaccompanied minor” is used in the 2012 orders, that term obviously does not mean that X would be travelling unsupervised, but rather it means that he would not be accompanied by a parent or other responsible adult who was charged solely with the responsibility of caring for him.  The Court is prepared to accept, however, that even travelling unaccompanied means that there is a level of supervision of X.  However, what is not known, is the nature and extent of this supervision.  For example, will the supervisor (howsoever designated) be responsible solely for X, or perhaps for all children who are travelling as unaccompanied minors on that particular flight?  What is the level, i.e, the intensity of the supervision?  Will X be largely left to his own devices and initiative during a flight, or will he be constantly monitored?  If there is a transit stop to meet a connecting flight, to what extent will X be shepherded from one point to another?

10. There are many uncertainties about the practicality of what the parents agreed to in 2012 at that time, let alone its practicality today.  Indeed, one wonders whether the parents have even checked to ascertain whether X, given his diagnosis of severe expressive and receptive language delay and attention deficit hyperactivity disorder is, in fact, eligible for unaccompanied travel.  This must have crossed the parents’ mind because the Orders say (for example order 24(b)) that his travel as an unaccompanied minor is “subject to airline regulations”.

Conclusion

1. This is a finely balanced case.  Many irrelevant matters were referred to in submissions.  The parameters of the dispute are set by the nature and extent of the variations to the orders proposed by the Mother.  Those Orders focus on X’s ability to travel unaccompanied.

2. This Court’s primary conclusion is that on the evidence before it, and particularly recognising the gaps in the evidence, on balance there has been a change in circumstance which was outside or beyond the contemplation or consideration of the parents at the time the original parenting Orders were made.  For example, the Court believes that those Orders reflect an optimism in the parents about X, and the conditions he was experiencing at that time, which is simply not born out by the progression in the developmental delay which he was experiencing.  Based on the evidence before it, the Court finds that X’s condition has not just become better understood and diagnosed, it has become worse in the sense that his development (that is, becoming older) has exacerbated the impact on him.  Thus, for example, it is one thing to consider the implications on a 4 year old boy of having ineffective listening skills, but an entirely different matter to recognise that a boy who (will be nearly 9 by the time these reasons for judgment are delivered) misinterprets social situations, struggles to follow instructions and has low average cognitive ability.  In this respect, X’s circumstances have clearly changed and there is an argument to be made that the 2012 Orders are no longer tailored to meet his special needs. 

3. In view of this, this Court further finds that it is in X’s best interests to allow litigation to be continued, but strictly within the parameters of his mother’s current Application which focuses on the issue of unaccompanied travel.  Moreover, this Court will further limit the parameters of this dispute by allowing the mother’s claim to continue only until there is further and better evidence before the Court about what, precisely, will be involved in X having unaccompanied travel, both domestically and internationally, as well as professional evidence about whether X is able to cope with this.  Depending on that evidence, the Court will consider a further application to dismiss the mother’s application. 

4. The Court wishes to make it very clear, however, that even if it had not found that X’s circumstances had substantially changed, the Court finds that it is in X’s best interests for the existing travel Orders to be reconsidered.  It must be remembered that the rule in Rice & Asplund is a common law rule, but not a statutory rule.  It is a rule of excellent pedigree and with a very solid jurisprudential foundation.  But it does not displace the statutory duties imposed on the Court by part VII of the Act.  If, therefore, the Court is concerned, as a result of evidence having been quite properly placed before it, that any Order made, whether by consent or otherwise, is no longer in the best interests of a child, then it is entirely appropriate for the Court to raise this with the parents, or other parties as they case may be, and draw attention to the Court’s concerns.  Whatever the parents may have agreed was in the best interests of X in 2012 is not something that binds the Court in May 2016.  It is well recognised that parents reach agreement in relation to the children for many reasons.  One hopes that parents are always, and indeed solely, motivated by what is best for their children.  Experience indicates that is not always the case.  Sometimes compromises are entered into for pragmatic, rather than principled, reasons. 

5. Having regard to the reasons set out above, the Respondent Father’s Rice & Asplund application is dismissed.  The matter will be relisted for Mention before this Court in four weeks’ time.  This will enable the parents to consider these Reasons for Judgment and to commence gathering the further expert evidence which this Court believes is necessary.  They should also consider whether it might be best to appoint an Independent Children’s Lawyer.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 11 May 2016

Schedule 1

Chronology provided by the Mother

Date	Issue	Reference
(omitted) 1966	Father born – Mr Wilde (49 years)
(omitted) 1966	Mother born – Ms Wilde (49 years)
2003	Parties commence co-habitation	SW 16/10/2015 p3
(omitted) 2005	Parties marry	SW 16/10/2015 p3
(omitted) 2007	Child born – X (8 years)	SW 16/10/2015 p2
January 2011	Parties separate
24 February 2011	Mother returns to Australia with the child.  Mother stays with friends at (omitted) for 6 weeks.  Child is groomed by close family friend and on at least one occasion appears to be inappropriately touched.	SW 16/10/2015 p5 & 15-19
August – September 2011	X assessed by Developmental Paediatrician as he was struggling with speech and behaviour at preschool.  Recommendations include: 1.   X to commence speech therapy. 2.   Referral to Occupational Therapist 3.   Referral to Child and Family East Team for parent to obtain strategies in managing X’s behaviour. 4.   Referrral for psychometric assessment in 2012 5.   Postpone school entry til 2013	SW 16/10/2015 p43-44
12 May 2012	Child Responsive Memorandum prepared by the Family Court in Sydney	SW 19/3/2016 p21 & Ann J
3 September 2012	Report prepared by Dr K. Diagnosis of Language delay, Global Development Delay and “at risk” of ADHD.	SW 16/10/2015 p46 & Annexure G
27 September 2012	Consent Orders made in regard to property and parenting matters.
1 November 2012	Report prepared by Ms A, Child and Adolescent Clinical Psychologist, assessing X’s cognitive functioning and readiness for school entry in 2013. Recommendations include: 6.   Continue weekly speech therapy. 7.   Apply for funding support for school when enrolled. 8.   X would benefit from structured home routines to support school routines 9.   Parenting support for behaviour management and to encourage better emotional regulation. 10.   Review X’s academic progress at end 2013 and after a year or 2 in school system.	SW 16/10/2015 Annexure G pg 5-6
September 2013	Mother and child move to (town omitted)	SW 16/10/2015 p6
December 2013/January 2014	Mother accompanies X overseas to (country omitted) to spend 9 days with Father in accordance with Orders	SW 16/10/2015 p21
February 2014	X repeatedly sexually abused at (omitted) Public School by another student.  Parents remove X from the school.	SW 16/10/2015 p11-14
March/April 2014	X changes school and is enrolled at (omitted) Public School	SW 16/10/2015 p11
12 May 2014	Mother reports sexual abuse to Police after failure of the Department of Family and Community Services or school to provide report or information regarding action taken against the student.	SW 16/10/2015 p12
December 2014/January 2015	X does not travel to (country omitted) as per the Orders, as father says he can not afford to bring Mother out as well.  Father spends time with X in Australia instead	SW 16/10/2015 p22
April/May 2015	Mother raises concerns with child travelling overseas with Father in the June Holidays, with the Father.  Mother expresses concerns about X’s vulnerabilities.	SW 16/10/2015 p25
(omitted) 2015	X turns 8 years of age
June 2015	Mother attempts to negotiate a change in the Court Orders with the Father.  Mother suggests that the Father travel to Australia to spend time with X whilst they continue to negotiate.  Father does not see X for the Holidays.	SW 16/10/2015 p34
September 2015	Mother suggests that the Father travel to Australia to spend time with X whilst they continue to negotiate.  Father does not see X for the Holidays.	SW 16/10/2015 p34
October 2015	At the commencement of Term 4 school counsellor puts X into a Friendship Learning Group	SW 16/10/2015 p41 & 49
19 October 2015	Mother files application to vary 2012 Orders
30 November 2015	Family Court hearing for Contravention proceedings before Justice Watts. Orders: 1.   Mother found to be in contravention of the order 22.2(b) made on 27/9/2012, without reasonable excuse. 2.   Mother enters bond for 12 months to comply with Court Orders. Additional Orders made on an interim basis, pending further Order: 3.   (By consent) Neither parent bring the child into contact with Mr L. 4.   Father to ensure that he accompanies the child into any public bathroom. 5.   Father is to ensure that the child is supervised when spending time with him, by himself or his partner Ms T 6.   Both parties attend post-separation program conditional that it is available via electronic means so the father can attend. 7.   By Consent, Order 22(d) made 27/9/2012 varied by adding provision for notice to be given to the Mother 3 months prior to time, with itinerary including flight details and accommodation etc.	Family Court Orders 30 November 2015
15 December 2015	School teacher Ms C writes letter outlining concerns for X for purpose of Assessment with Paediatrician.	SW 19/3/2016 p10 & Ann G
December 2015	X travels to (country omitted) with the Mother	SW 19/3/2016 p31
9 – 24 January 2016	Child spends time with Father and travels to (country omitted) with Father.	SW 19/3/2016 p13
January –March 2016	Mother reports X’s behaviour has been escalating since he has returned from Overseas trip with Father	SW 19/3/2016 p17
11 February 2016	Report prepared by Dr B.  X diagnosed with ADHD	SW 19/3/2016 p4 & Ann D
18 February 2016	Report prepared by Ms A.  X diagnosed with Autism Spectrum Disorder and Co-morbid ADHD	SW 19/3/2016 p5-6 & Ann E
February/March 2016	X says to his Mother that he is “sad and angry because Dad never wants to come and see me in Australia”	SW 19/3/2016 p 12
11 March 2016	X is suspended for 4 days for punching another child in the face during a game of tip	SW 19/3/2016 p 11 & Ann H
7.4.2016	Interim Hearing – Wollongong Federal Circuit Court