Williamson & Parrish
[2022] FedCFamC2F 68
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Williamson & Parrish [2022] FedCFamC2F 68
File number: MLC 3792 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 28 January 2022 Catchwords: FAMILY LAW – Whether Rice & Asplund needs be considered – notation and agreement Rice & Asplund would not apply – rule in Rice & Asplund applied – proceedings permitted – significant change of circumstances found. Legislation: Family Law Act 1975 (Cth), ss.60B, 60I, 65DAA
Federal Circuit Court Rules 2001 (Cth), r.13.10Cases cited: Blaze v Grady (2015) 54 Fam LR 172
Cantrell & North (2019) FLC ¶93-921
Carriel & Lendrum (2015) FLC 93-640
CDW & LVE (2015) FLC 93-683
Commonwealth v Verwayen (1990) 170 CLR 394
Daniel & Fulton [2018] FamCA 39
Dundas & Blake (2013) FLC 93-552
Gorman & Huffman and Anor [2016] FamCAFC 174
Grace & Grace (2020) FLC 93-996
In the marriage of Rice and Asplund (1978) 6 Fam LR 570; (1979) FLC ¶90-725
Kulat & Azzarudin [2018] FamCAFC 97
Lysons & Lysons (2019) FLC ¶93-891
Maldera v Orbel (2014) 52 Fam LR 24; (2014) FLC 93-602
Marsden & Winch (2009) 42 Fam LR 1
Miller & Harrington (2008) FLC ¶93-383
Oberlin & Infeld (2021) FLC ¶94-017
Poisat & Poisat (2014) FLC ¶93-597
Searson & Searson (2017) FLC ¶93-788
SPS and PLS (2008) FLC ¶93-363
Stokes & Stokes [2010] FamCA 1007
Viro v The Queen (1978) 141 CLR 88
Walter & Walter [2016] FamCAFC 56Division: Division 2 Family Law Number of paragraphs: 82 Date of last submission: 10 November 2021 Date of hearing: 13 October 2021 Place: Melbourne Counsel for the Applicant: Ms H Dellidis Solicitor for the Applicant: Bailey Timms Lawyers Counsel for the Respondent: Ms S Fisken Solicitor for the Respondent: Lander and Rogers ORDERS
MLC 3792 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WILLIAMSON
Applicant
AND: MS PARRISH
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
28 JANUARY 2022
THE COURT ORDERS THAT:
1.The Respondent Mother’s application to dismiss the Father’s Initiating Application in reliance upon the rule in Rice & Asplund be and is dismissed.
2.The parties are directed to consider and submit directions for final hearing.
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 a pseudonym Williamson & Parrish has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION
The question I must determine is whether the applicant father, Mr Williamson (‘the Father’) should be permitted, or prevented, from bringing an application in this court to change the living arrangements of the parties' two children that had been determined by final orders made by consent in the Family Court of Australia on 2 February 2017 (‘the 2017 Final Orders’). The respondent mother, Ms Parrish (‘the Mother’) asserts that the Father should be prevented from bringing such application by application of what is known as the rule or decision in Rice and Asplund. That rule is a reference to the Full Court of the Family Court of Australia decision of In the marriage of Rice and Asplund (1978) 6 Fam LR 570; (1979) FLC ¶90-725 (‘Rice & Asplund’) and the long line of authoritative decisions at first instance and on appeal in the Full Court of the Family Court of Australia applying, refining and explaining the legal principles applicable when a party commences a court case about children when a final order about the children already exists.
Within that question I must determine the effect or weight of a notation, said to be an agreement, not an order, recorded in the 2017 Final Orders that purports to prevent either party raising the rule in Rice & Asplund in the event either party brought a further parenting application after mediation but provided such application was not commenced prior to 1 January 2019, that is almost 2 years later. These proceedings commenced on 7 April 2021, more than 4 years later.
Rice & Asplund hearings can have various forms. Frequently, and frequently in the Melbourne Registry, Rice & Asplund applications are heard as a preliminary hearing and a hearing on the papers. That is, without the parties giving evidence or being cross examined. Other forms of a Rice & Asplund application, as demonstrated by the authorities including SPS & PLS (2008) FLC ¶93-363 (‘SPS & PLS’), is that the Rice & Asplund principle can apply at whatever stage of the proceedings the matter is pressed. That can include a special hearing where evidence is taken to determine facts in dispute and/or after a family report has been ordered and received and/or at a final hearing after all of the evidence is in. References to 'the Act' are references to the Family Law Act 1975 (Cth).
THE PROCEEDINGS
The first question was the nature of the hearing and the parties, represented by experienced counsel, determined that question. In this case both parents sought to proceed as a preliminary hearing and on the papers. Neither parent sought that the court have the additional information of a family report from an independent expert prior to the Rice & Asplund question being determined.
It is common ground that the Father obtained the compulsory section 60I certificate following unsuccessful mediation between the parents. The Father issued his Initiating Application on 7 April 2021 with a first return on 15 June 2021. On 7 May 2021 the Mother's solicitors wrote to the Father, then a litigant in person (see annexure -1 to the Mother's affidavit filed 4 June 2021), and omitting formal matters stated as follows:
Dear Mr Williamson
Parrish and Williamson - Parenting Matters
We have been engaged by Ms Parrish in relation to family law matters.
Our client has provided us with a copy of your Initiating Application filed on 7 April 2021 (your Application) and the Final Parenting Orders dated 2 February 2017 (Final Orders).
The Rule in Rice and Asplund provides that the Court will entertain fresh proceedings relating to children who are the subject of existing orders only if there has been a significant change in circumstances since the making of the Order. In our client's view, which is one that we share, there has not be a significant change in circumstances to warrant the reopening of proceedings.
In light of the above, we suggest that you immediately withdraw your Application, and confirm that you have done so.
In the event that you do not withdraw your Application, our client will be seeking that your Application be dismissed at the Hearing on 15 June 2021, and that an Order for costs be made against you.
This letter and subsequent correspondence will be produced on the question of our client's costs.
…
On the first return orders were made for the proceedings to be adjourned to 20 August 2021 "for an Interim Defended Hearing on the Rice & Asplund issue". On 20 August 2021 the parents sought that the matter be heard as a preliminary hearing, on the papers, and it was. On 20 August 2021 the matter was one of seven matters listed before me that day and all being heard electronically over Microsoft Teams, but I was assisted by experienced counsel who efficiently made comprehensive submissions. I ordered that any further precedent or authority as to how the Father's material should be regarded on a preliminary hearing be provided within a further four days. I reserved my judgement and reasons. These are those reasons.
BACKGROUND
The parents married in 2010. Their son, X, was born in 2011 and their daughter, Y, was born in 2012. The parents separated on 24 February 2015 and were divorced on 14 June 2016. The children are now aged 10 (almost 11) and 9. The children live in a shared care arrangement pursuant to the 2017 Final Orders. By those orders, during school term the children live in a fortnightly cycle and with the Father from after school on Thursday until before school on the following Monday (week one) and in each other week, or alternative weeks, from after school Wednesday until before school Thursday and for one half of each school holiday. At the time of the 2017 Final Orders, X was aged 5 years and 11 months, or almost 6, and Y was aged a little over 4 years.
The Mother had originally filed an application seeking financial orders on 17 November 2015 and on 19 February 2016 the Father filed an amended response wherein he then sought that the parents equally share parental responsibility for the children and that the children live in an equal shared care arrangement, alternative weekends with each parent and the weekdays being split equally between the parents with each having two nights each week, and for one half of all school holidays.
Pursuant to orders of the court a child responsive program (or interim) memorandum was prepared on about 8 April 2016. Interim orders were made in October 2016 and a family report was ordered. The family report was undertaken by Ms B (who had also undertaken the April 2016 memorandum) and prepared on about 27 January 2017. I will refer in detail to observations in that family report later. A mere five days after the family report was prepared the parties entered final consent orders before Justice Thornton in the Family Court of Australia. It was not disputed in the hearing before me that the 2017 Final Orders reflected the recommendations of the family report writer. Those orders had been followed by the parents since they were made.
MATERIAL RELIED UPON
The Father relied upon:
(a)Affidavit of Father filed 23 July 2021 (which annexed the 2017 Family Report);
(b)Initiating Application filed 7 April 2021.
The Mother relied upon
(a)Outline of Case filed 19 August 2021;
(b)Affidavit of Mr C (psychologist) filed 18 August 2021;
(c)Affidavit of Mother filed 6 August 2021;
(d)Affidavit of Mother filed 4 June 2021; and
(e)Response to Initiating Application filed 4 June 2021.
THE EXISTING 2017 FINAL ORDERS
The very detailed orders provide for the children's living arrangements including special days and the manner of the parties' communication. It is not necessary to recite all of the orders but the orders bear all the hallmarks of experienced and cautious family lawyers assisting their clients with drafting, and obtaining by consent, clear and enforceable court orders.
The relevant parts of the 2017 final orders are as follows:
BY CONSENT IT IS ORDERED:
1.That the Mother and Father have equal shared parental responsibility for the children X born in 2011 and Y born in 2012.
2.That during school terms the children live with the Father and the Mother in a fortnightly cycle as follows:
(a) with the Father:
(i)in week one, from the conclusion of school/kindergarten or 3:30pm on Thursday until the conclusion of school/ kindergarten or 3:30pm on Monday and each alternate week thereafter SAVE THAT in the event that the Monday is a public holiday the Father's time shall be extended to 7:00pm on the public holiday;
(ii)in week two from the conclusion of school/kindergarten or 3:30pm on Wednesday until 3:30pm on Thursday and, each alternate week thereafter commencing Wednesday 8 February 2017;
(b) at any other time as agreed between the parties in writing; and
(c)live with the Mother at all other times subject to paragraphs 2(a) and (b) hereof.
3.That arrangements set out in paragraph 2 herein are suspended during all school holiday periods, and shall resume at the commencement of each new school term as if the sequenced weekends had continued over the school holiday period.
4.That the children spend half of the Victorian Gazetted term school holidays with each parent by agreement (unless both children are at private schools in which case the children will spend one half of all private school holidays with each parent by agreement), and in the absence of agreement:
(detailed provisions omitted)
5.That the children spend half of the long summer Victorian Gazetted school holidays with each parent as agreed (unless both children are at private schools in Which case the children will spend one half of all private school holidays with each parent by agreement) and in default of agreement such time will be spent as follows:
(detailed provisions omitted)
…
NOTATION:
A.That the parties attend mediation in December 2018 in order to discuss any proposed increase in the father’s time with the children or any other parenting issues.
B.That these Final Orders not be capable of being plead as a bar to the issue of further proceedings regarding parenting matters pursuant to the precedent in Rice and Asplund in the event that either party brings a further Parenting Application after medication has taken place in accordance with (A) above, save that any such proceedings shall not be commenced prior to 1 January 2019.
(emphasis added)
LEGAL PRINCIPLES
There can be no doubt that the rule or principle or line of authority known as the rule in Rice & Asplund is part and parcel of the law applicable to the determination of how children's living arrangements are to be determined in the Commonwealth of Australia. The Full Court of the Family Court of Australia (‘the Full Court’) has stated and restated the principle or rule on many occasions. This court is bound to follow the precedents or authorities or interpretation of the applicable law as made from time to time by the Full Court, see Poisat & Poisat (2014) FLC ¶93-597 at [8]-[13] and Viro v The Queen (1978) 141 CLR 88 at 129 and SPS and PLS (2008) FLC ¶93-363 at [85]-[87].
Some of the various statements of the rule of Rice & Asplund are accurately set out in the Mother's outline of case filed the evening before the hearing and it is convenient to recite those statements of law which I adopt;
9.The law pertaining to the application of the rule in Rice v Asplund is well settled. The rule was stated by Evatt CJ in Rice & Asplund (1979) FLC 90-725 at 78,905-6 as follows:
“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 invite endless litigation for change in an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that there was some changed circumstance which would justify such a serious step, some new factor arising, or, at any rate, some new factor which was not disclosed at the previous hearing which would have been material.” (Emphasis added by Mother’s lawyers)
10.The dangers and public policy aspects of continued litigation in parenting disputes were referred to by Nygh J in In the marriage of McEnerney (1980) FLC 90-866 at 75,499 as follows:
“….the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents, who, because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
One comes back to the fundamental principle that the interest of the child are paramount and that consideration alone should lead a court to discourage a parent from coming back before the court too soon after the court has had an opportunity to consider fully the situation of the child and there is really no startling new circumstances that can be brought before the court.”
11.The rule in Rice v Asplund has long been regarded as a manifestation of the best interests principle, to protect children from the damage and difficulties of perpetual dispute over them by their parents. It balances the changes in circumstances that may occur that warrant relitigating final orders with those that do not. The Full Court in Carriel & Lendrum noted the following in relation to the rule:
“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” (Emphasis added by Mother’s lawyers)
12.The rule is generally considered at a preliminary hearing and if such application to re-open parenting proceedings is resisted (as in this case), then:
“it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstances shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child's welfare than to allow the application to continue”. (Emphasis added)
13.In Marsden & Winch the Full Court commented on the test to be applied in cases where there was an application to re-open parenting orders. The Court said (from [58]):
"That question might be better formulated in another way in the following proposition, namely that there is a requirement:
(1)for a prima facie case of changed circumstances to have been established; and
(2)for a consideration, as to whether that case is a sufficient change of circumstances to justify embarking on a hearing".
(Emphasis added by Mother’s lawyers)
Subsequent to the hearing, as requested, the Father's counsel referred the court to the decision of Searson & Searson (2017) FLC ¶93-788 (‘Searson’)and in particular to the reasons of Murphy J at [11] and [16] and Kent J at [60]. It is helpful to set out those paragraphs here.
[11] His Honour went on to say this:
… [I]n my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
(Emphasis added)
…
[16] In Marsden & Winch the Full Court said:
[57] In Miller … the court posed the question:
[105] Adapting the language used by Warnick J in SPS and PLS … the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?
[58](and repeated [58] extracted in the Mother’s submissions adopted above).
(Citations omitted and emphasis added)
…
[60]In considering the application of the so called rule in Rice & Asplund at the preliminary stage of the proceedings in which the primary judge did in this case, her Honour was bound to assume the acceptance of the mother’s evidence on the question of whether a sufficient change in circumstances was demonstrated. I agree with his Honour’s observations that [24], [25] and [26] of her Honour’s Reasons for Judgment demonstrate error in this respect. On the mother’s evidence it is clear that the mother demonstrated a substantial change in circumstances via the nature and quality of the relationship with her present partner and in respect of her financial circumstances.
(emphasis added)
I also refer to repeat and adopt [50] of Marsden & Winch (2009) 42 Fam LR 1 (‘Marsden & Winch’):
[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.
(emphasis added)
Subsequent to the hearing, as requested, the Mother's counsel referred the court to Miller & Harrington (2008) FLC ¶93-383 (‘Miller’) at [67]-[96] and also Oberlin & Infeld (2021) FLC ¶94-017 (‘Oberlin’). Paragraphs 80-82 of Miller, in particular bear repeating, on the question of whether the Applicant’s evidence must be accepted on a Rice & Asplund inquiry.
[80]In our view, that passage need not be taken as saying that the only way in which the rule in Rice and Asplund can be applied at a preliminary stage is on the basis that the case of the applicant for parenting orders is taken at its highest.
[81]Nor, as presently advised, do we think that the authorities cited by Warnick J in SPS preclude the possibility that, in a “preliminary” hearing for the purpose of ascertaining if an application for parenting orders should go no further because of the rule in Rice and Asplund, some resolution of factual disputes may occur, for example, whether a change of circumstances has or has not occurred.
[82]However, the qualitative question of whether a change that has occurred is or is not sufficiently significant to justify a full further hearing of a parenting issue may be one much more difficult to answer in a preliminary hearing involving resolution of only some disputed facts.
I asked the Mother's counsel:
His Honour: Is it common ground, Ms Fisken, that in applying the Rice v Asplund slide rule over this case that I take the father’s case at its highest?
Ms Fisken:No……………………….in my submission, that’s not what the authorities say.
(see page 25 of the Transcript dated 20 August 2021)
It may be that the applicant’s evidence is not taken at its highest, rather it is “accepted”, although in this case there is no difference between those two positions.
The restatement of the law in Searson, confirming the often cited authority of Marsden & Winch, satisfies me that on this hearing, known as a preliminary hearing on the papers, I am required to accept the applicant’s evidence about the facts that he asserts constitute a sufficient change of circumstances. That does not mean I must accept his opinion about the legal consequences of those accepted facts.
In CDW & LVE (2015) FLC 93-683 (‘CDW’), Martin CJ of the Supreme Court of Western Australia determined a Rice & Asplund case. The ratio of the case was that his Honour determined that he did not have jurisdiction to hear the appeal, but his Honour went on to make observations in the event that he was wrong, and he had jurisdiction, how he would have determined the matter. In the process of doing that, his Honour referred to and identified key principles from a number of established authorities of the Family Court of Australia. At paragraph 88 his Honour said:
[88]The cases to which I have referred make clear that identification of the asserted change or changes in circumstances is a critical step in the necessary process of evaluation and assessment…
And his Honour in that paragraph went on to say:
… 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. So, for example, in Marsden & Winch the Full Court of the Family Court of Australia held that in order to determine, in a particular case, whether the court should be willing to embark upon another hearing, the court must look at the past circumstances, including the reasons for the decision and the evidence upon which it was based.
(emphasis added)
That passage in CDW has been adopted by Murphy J in Walter & Walter [2016] FamCAFC 56 (‘Walter’) at [85] and cited by Watts J in Daniel & Fulton [2018] FamCA 39 (‘Daniel & Fulton’) at [10].
In Kulat & Azzarudin [2018] FamCAFC 97 (‘Kulat’) the position of a more mature child and the effluxion of time was considered in the joint reasons of Strickland, Kent & Forrest JJ in the context of a Rice & Asplund submission being made. The matter was not raised as a preliminary matter but after evidence and a family report had been prepared and that report addressed the then almost twelve year old’s wishes. The original final orders had been made by consent in May 2012 and the Mother had commenced proceedings five and a bit years later. I note the underlying facts are not on all fours with this case and the original orders (unusually) provided for an automatic change of residence 5 years later to facilitate schooling. But some of the general observations are apposite. This authority includes discussion of two rules of public policy discussed at [15] that were not addressed in this case and are not relevant to this matter.
The Full Court observed thus:
[19]In our judgment, for the reasons already discussed, it can be concluded that either the rule in Rice and Asplund had no scope for application in the circumstances of this case or, alternatively, if it remained to be applied at all, the scope for its operation was significantly curtailed by the circumstances of the case referred to.
[20]More fundamentally, and even if these conclusions be incorrect, we find the contentions of the father to the effect that there existed no sufficient change in circumstances since the 2012 orders to justify reconsideration of the parenting issues, to defy reason.
[21]That is because, first, there was no issue at the time of making the 2012 orders that any views of then six year old B, whether expressed or not, could have any material bearing on determining his best interests given his young age and commensurate lack of maturity. In contrast, the views of a then almost 12 year old B, as expressed to the independent expert who assessed him as “intelligent” and “whose social and emotional maturity is impressive” (as evidenced by him being School Captain and Dux of his primary school) was a fundamentally important consideration in determining, as at December 2017, his best interests. Each of SPS and PLS and Morton & Berry [2014] FamCAFC 208; (2014) FLC 93-613 are Full Court authorities supporting the proposition (one put from the bench to counsel for the father during argument of this appeal) that the views of a child who has matured since the making of the earlier orders may alone constitute a change in circumstance requiring reconsideration of those orders.
[22]Put another way, as at the making of the 2012 orders on 1 May 2012, there existed no evidence even to suggest that B’s best interests may not be served by his moving to live in Country C, and to the primary care of his father, some five and a half years after the making of those orders. In contrast, evidence of B’s expressed views as articulated by him to the single expert, and that expert’s assessment of those views and the weight to be given to them, fundamentally challenged whether that relocation, and change in primary care arrangements for B, was in his best interests. That of itself was a profound change in the relevant circumstances existing as at the time of the 2012 orders.
[23]Second, and allied to this, whilst effluxion of time, even considerable time, since the earlier order may not of itself be determinative, it is nevertheless plainly a relevant consideration (see Zabaneh and Zabaneh [1986] FamCA 18; (1986) FLC 91-766). Here, as at 1 May 2012 the parents had separated in June 2011, and the child B had experienced only eight months of the parental post-separation period of living in his mother’s primary care, and he was then in early primary school. As at December 2017 B had lived in his mother’s primary care for a further five and a half years; had completed his primary school education with academic and social distinction; and had been living primarily in Australia since 2010, essentially the whole of the period of his cognitive development from a young child into early adolescence. The effluxion of that time, about five and a half years from when B was only aged six years, allied with all that it entailed in those respects, cannot be lightly dismissed by the notion that there had been no material change in circumstances since 1 May 2012.
In Grace & Grace (2020) FLC 93-996 (‘Grace’), a Full Court decision delivered 19 November 2020, the appeal concerned an initial hearing that got off to a bad start when there was confusion as to exactly what was being heard by the Court. The Full Court was sitting as Ainslie-Wallace J. Her Honour recited paragraph 48 of Marsden & Winch, being the underlying reason why there is such a test of Rice & Asplund, and it is worth citing here:
[9]The principle is a manifestation of the best interests principle and founded on the notion that "continuous litigation over a child or children is generally not in their interests". The application of the rule is connected to "the nature and degree of change sought" to the earlier order.
[10]In Marsden v Winch (2009) 42 Fam LR 1 ("Marsden v Winch"), the Full Court said:
[48]. In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
(citations omitted)
Her Honour concisely set out a useful summary of the appropriate test or principles to be applied at paragraph 11:
[11]The determination of whether there has been sufficient change in circumstances to warrant a re-opening of parenting issues can be determined as a preliminary issue or be considered at the same time as the hearing into that re-opening. The Full Court in Marsden & Winch continued and at [58] formulated the inquiry to first establish a prima facie case of changed circumstances to have been established; and secondly a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
THE FATHER'S CASE
In substance the Father's case was that the notation recited in the orders was an agreement between the parties at that time and that the parties should be bound by it and hence that I did not need to consider the Rice & Asplund rule. It was put that the Mother had dishonourably resiled from that agreement and only after the Father had issued these proceedings in accordance with what had been contemplated by the parties at the time of the orders and more than 2 years after the time contemplated by the agreement. Further the orders were based upon the observations and recommendations of the family report writer and paragraphs of the family report (annexed to the Father's affidavit) were relied upon.
It was also put that, in any event, there were significant changes in the children's lives that would meet the Rice & Asplund test or a "general best interests assessment."
Those submissions included the following points:
Ms Dellidis:Your Honour is concerned with the welfare of two children who are aged 10 and eight. And these parties separated a number of years ago, and entered into final orders in 2017. Those final orders were the result of, and consideration of, a family report prepared by an internal consultant who saw the parties in January 2017. And it’s clear from the recommendations in the family report that the parties adopted the expert evidence at the time…
(see page 5 of the Transcript dated 20 August 2021)
Ms Dellidis:… It is commonplace in this court that notations to the effect of those placed on the orders made in this case in 2017 where – it’s commonplace in this court in my experience that the court is guided as to the ambit of the dispute between the parties, and whilst it retains an overarching obligation to consider as its priority the children’s best interests, it will not – it has not and does not and is not compelled to, in my respectful submission, have to go through this process, because it is a process designed to protect the parties and the children – the parties and the children as a consequence, and if the parties themselves have made a decision and an agreement that they’re going to deal with any future issues regarding their children in a particular way, whilst the court can raise it, in my submission, it’s not necessary for your Honour to feel that you are bound to consider it.
My client’s primary position is that the Rice & Asplund rule ought not be a matter that concerns your Honour today given that the parties made their own determination as to how they will deal with it on the basis of expert evidence that had before it concerns about the state of the relationship between the parties back then. What I say, your Honour, is that there’s a difference between the court raising the Rice & Asplund issue and then compelling the parties to proceed with it. Thornton J made those orders sitting as a single judge of the Family Court and she didn’t consider it contrary to the children’s best interests. She didn’t see it as potentially usurping the court’s jurisdiction regarding maintaining its focus on the children’s best interests.
(emphasis added)
(see page 7 of the Transcript dated 20 August 2021)
Ms Dellidis:…and pointing out the deficits or the vulnerabilities or the gaps in, perhaps, the children’s needs being more fully addressed. And he points out – and he points to what he can offer, rather than what she lacks. And what he says has happened in these children’s lives has significantly changed the landscape for them, both domestically and more broadly, in terms of how they’re – how they fit within their domestic lives.
He says – and the factors that he would put point out to you, your Honour, whether it be pursuant to Rice & Asplund, or whether it be as a general best interests assessment – he says these children were four and six at the time; they were living in a house with their mother, alone. Whilst she had – it appears she was in a relationship with her now partner. The family report author certainly considered her to have not repartnered. That’s how her relationship status is characterised in the report. And……….one of the changes is that these children acquired a stepfather. That whilst the mother was in a relationship, they were not cohabiting, and the family report author considered the wife, at the time, as having not repartnered. These children also acquired two stepbrothers. One of which has autism spectrum disorder; both of whom attend a different school. They have also acquired, at the beginning of last year – or – a new half sibling. And they have been diagnosed with attention deficit hyperactivity disorder; X in late 2017 and Y in the – in about May of this year. The wife’s position is, well, this is no new news. But when one reads the description of the children – she says they were – they had issues and difficulties. “They were just undiagnosed. All I’ve done is had it formally diagnosed.”
And diagnosed to the extent that they’re both medicated for their condition and under the care of a paediatrician, in circumstances where the family report author had described them in very different terms. At the time that they were seeing the family consultant they describe – she describes X’s issues as he being “a bright articulate boy”. And she identifies these things with respect to some health and welfare, that there was some bed wetting for which he had had some assistance, there was some anxiety for which he had seen a psychologist, and he had some asthma.
With respect to Y, she too is described as meeting – not she too – she is described as meeting her developmental milestones. There was some concerns about her speech development, that was it.
(emphasis added)
(see page 14-15 of the Transcript dated 20 August 2021)
THE MOTHER'S CASE
The filed Response of the Mother had sought summary dismissal pursuant to the then applicable Rule 13.10 of the Federal Circuit Court Rules 2001 (Cth) and a determination of whether or not there was a change of circumstances to warrant reopening in accordance with the principles of Rice & Asplund and indemnity costs. The Rule 13.10 application was abandoned in the running. The late filed outline of case relied upon the rule of Rice & Asplund and asserted:
·that the changes asserted by the Father were not sufficiently material or significant to meet that threshold test;
·nor were they matters not contemplated by the current orders;
·and even if they were significant changes they did not justify subjecting the children to further litigation.
·that the children's treating psychologist, who provided a report solely at the request of the Mother, had opined that a court case could potentially create more instability and stress for both children, could have a negative impact on their mental health, and is likely to impact on the gains that have been seen in both children over the past 18 months and that at this point in the children's lives they would benefit from having as much certainty and stability as possible.
·That further litigation is unlikely to result in a parenting arrangement that would significantly differ from the existing arrangement such as to outweigh the impact litigation would have on the children.
The Mother also relied upon the 2017 family report and in a similar position to the Father submitted that:
[17]The Final Parenting Orders plainly adopted and took into account the recommendations made by Ms B…
Mother's position as to Notation B
It was not disputed that the notations recited at the end of, and in the same document as, the orders recited an agreement made between the parties at that time. The Mother recanting the agreement recited in the notation was not touched upon in her affidavit material. However, on this interim hearing, I proceed on the basis that her renouncing the agreement is bona fide and motivated by her current view of the best interest of the children.
It was put on the Mother's behalf that notwithstanding the notations, and in particular Notation B, the 2017 Final Orders did not oust the application of the principle of Rice & Asplund in the proceedings and in any event the notation should be given little weight. In support of that position the observations of the Full Court in Lysons & Lysons (2019) FLC ¶93-891 at [71] were relied upon;
[77]…the primary judge cannot simply oust well-settled principles of law such as the principle in Rice & Asplund (1979) FLC 90-725 or pre-emptively decide they will not apply.
The decision of Bell J in Stokes & Stokes [2010] FamCA 1007 at [39-40] was also relied on. In that case orders had previously been made and included the following:
AND THE COURT NOTES:
The parties concede that for the purposes of this application that neither party raises any threshold issue relevant to the decision of Rice and Asplund and for the purposes of any future litigation between the parties, nor shall a party raise an argument that any threshold issue relevant to the decision in Rice and Asplund applies at any date prior to these orders.
In discussion about this case neither counsel or I were able to ascertain just what was meant by the parties in that particular notation. That ambiguity did not to detract from what were the obiter observations of Bell J at [39-40].
[39]As far as this is concerned, it seems to me that there is a notation that the parties between themselves, ie inter se, have agreed that they will not raise any issues in relation to Rice v Asplund. I do not consider that this is of much moment, notwithstanding the fact that it was not brought to my attention because there is no way that I would have thought the parties could ask the power of the Court to consider authorities which initially started with Rice v Asplund were excluded by mutual agreement.
[40]I do not know how this agreement between the parties would be enforced because if one party sought an injunction restraining the other party from raising Rice v Asplund it would appear to be an attempt to end the power of jurisdiction of this Court. To me it appears that there are authorities to the effect that notwithstanding Rice v Asplund may not be raised by the parties, it should be raised by the judge.
The Mother also relied upon the case of Oberlin (supra). In that case the Full Court upheld on appeal following contested proceedings at first instance (ie the orders were not by consent). The orders made by the Judge at first instance included Order 20 which was as follows (taken from Oberlin):
[16]These grounds collectively attack Order 20, which was made in the following terms:
(20)Not before 1 September 2022, the mother be permitted to file an application seeking to extend her time with the children or to discharge the requirement of order 6 above, upon the filing of an affidavit in support by a psychiatrist addressing the mother’s mental health, treatment she has received and the risk issues referred to in:
(a) [The single expert psychiatrist’s] report;
(b) [The Family Consultant’s] family report; and
(c) these reasons for judgment.
[17] The order was attended by a notation made in these terms:
B.The mother, father and maternal grandparents shall not raise a Rice & Asplund argument in relation to any proceedings initiated by the mother pursuant to order 20 herein.
That notation was not by consent but adopted by the primary Judge from the position of the Independent Children's Lawyer. For the reasons set out in that decision the Full Court found that that Order 20 was ostensibly made without power. But the Full Court had a bit to say about the notation in that case:
[44]One final comment should be made. Notation B made by the primary judge is meaningless. Notations are not orders. The judgment of the primary judge is embodied only in the orders (Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64), which are explained in the reasons for judgment. Apparently, the notation is intended to record an admission that the parties will not raise Rice and Asplund as an impediment to the mother’s institution of fresh proceedings after the elapse of about two years. In the first place, it is not at all clear from the transcript that the father ever even made such an admission. In fact, the reasons for judgment firmly imply that he did not (at [380]). But even if he did, admissions can be recanted. They do not endure indefinitely. If it be imagined that, in two years’ time, the mother commences fresh proceedings but the expert evidence which is then available tends to show her psychological condition has not improved and the circumstances have therefore not materially changed, why would it not be proper for a party to contend for the invocation of the Rice and Asplund guideline and seek dismissal of the mother’s fresh application, regardless of what is recorded in Notation B? Clearly, the terms of the notation cannot preclude a party’s legitimate recourse to applicable legal principles.
The Mother's submissions included the following;
Ms Fisken:…….what is the likelihood that there would be any change to the orders?..............
His Honour: ………..effectively, a prospects of success aspect.
Ms Fisken:The prospects of – it is quite clear that the children enjoy a beneficial, meaningful and positive relationship with both parents under the current orders. There is no evidence to suggest that they are not adequately or appropriately cared for in either parents’ care and, indeed, that is conceded by both parents. Not identified with Ms B. So it is not a risk issue case.
What Mr Williamson effectively says is, “Look, given the formal diagnoses of the children and the relative calm of my household,” as he sees it, “and the business” – and he uses the word, “I imagine it is busy in the mother’s household.” What he doesn’t say to your Honour is, “The children have told me that they can’t rest; they can’t do their work; they can’t do this; they can’t do that.” He doesn’t say, “The children’s medical professionals have told me that the children are not thriving in the current arrangement.” In fact, to the contrary, Mr C’s report suggests that in the period after my client commenced cohabitation with her partner and after these diagnoses, that there has been an improvement during 2020 with the children’s presentation. That is, that they are doing well.
I would accept, of course, what Ms Dellidis says and I think perhaps Mr C appropriately put – it’s impossible to know with precision the impact of litigation on children, but there is a slight difference here, which is that we know a little bit about these particular children. It’s not just a general proposition that litigation is contrary to the best interests of children. These are children that, throughout the assessment process – and we have Ms B on two occasions, and she refers – your Honour doesn’t need to read the child and family assessment from 2016 because Ms B undertook both assessments and she refers back to the child and family assessment in the family report. And she does describe these children being anxious and experiencing separation anxiety.
So these children are children that are particularly vulnerable to stress and uncertainty, and to the extent that they have been diagnosed, my client says consistency and routine is what they thrive on. Being asked to accept further changes to their living arrangements is a change. And it is a change in the context of what children everywhere are going through at the moment that I think your Honour can take judicial notice of, which is the restrictions that each and every person, adults and children alike, have been labouring under. It is suggested that my client took X to Mr C for the purpose of these proceedings. Mr C’s own report demonstrates that’s not the case. It was to help manage her stress and attention difficulties relating to his pre-existing diagnosis of ADHD. That’s what’s said.
It’s not suggested that, all of a sudden, after my client was served with material, that there has been this need for her to have X receive support…
(see page 28-29 of the Transcript dated 20 August 2021)
Further submissions were made, in response to my questions, by the Mother's counsel including the following:
His Honour: And then lastly, assuming you’re right – your submissions are right that the parties are at liberty to depart from the agreement in the notation and that whether – and I think you’re saying whether or not they do, it is open to me to raise it in any event – Rice & Asplund – and that if either one of them raises it, regardless of the notation, I’m bound to consider it. Assuming that last proposition is right, is the fact that there was an agreement made at the time and the length of time that the agreement was on foot – is that a relevant matter to be taken into account in the Rice & Asplund issue?
Ms Fisken:Look, I think I would be hard pressed to say that it was not relevant. What weight it should be attributed is a different question all together, but I would acknowledge that it is a relevant consideration, but simply say that now that it has been raised, it is just but one of many considerations, and it does not relieve the court, in my submission, from the obligation of – there’s not – sorry. I will put it this way. There are not two different rules, one that applies if there is a notation and one that applies if there were not a notation. It is the same rule, albeit that the notation may have some – may be something that your Honour needs to engage with in determining whether or not the change of circumstances has been made out.
(see page 30-31 of the Transcript dated 20 August 2021)
PART VII AND A RICE AND ASPLUND INQUIRY
In SPS and PLS at [85] & [86] Warnick J made the following observations:
[86]This provision (noting the reference to Rice & Asplund in the 2006 amending legislation) and the position that the rule in Rice and Asplund is merely a manifestation of the best interests principle, establish that the rule survives. However, its application must recognise the new legislative content in which the question is now posited and answered. This includes the objects (and underlying principles) of the Part, set out in s 60B …
[87]While it is clear that of themselves the legislative changes introduced by the 2006 Act do not constitute a change of circumstance for the purpose of the Rice and Asplund rule, a change in relevant facts may take on a significance because of the legislative amendments that it would not have possessed before them.
(emphasis added)
Section 60B(2)(a)-(e) commands as follows:
Objects of Part and principles underlying it
…
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In Carriel & Lendrum (2015) FLC 93-640 (‘Carriel’) the Full Court observed as follows:
[55]This approach is also consistent with the recent pronouncement by the Full Court in SCVG & KLD (2014) FLC 93-582 to the effect that the nature and extent of the consideration of the mandatory statutory considerations must, of course, depend upon the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings.
[56]This analysis leads us to the view that where the principle in Rice & Asplund is being considered, it will not be appropriate or necessary to discretely address many of the factors in s 60CC of the Act in determining where the best interests of the child might lie.
The exercise of discretion in a Rice & Asplund application or inquiry must be in accordance with Division 12A of Part VII, see Watts J in Daniel & Fulton at [13], Miller at [73] and Murphy J in Walter at [113].
The form of section 69ZN is similar in form to section 60B. Section 69ZN is entirely consistent with the underlying principles of Rice & Asplund. Section 69ZN is as follows:
Principles for conducting child-related proceedings
Application of the principles
(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.
(2)Regard is to be had to the principles in interpreting this Division.
Principle 1
(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.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b)the parties to the proceedings against family violence.
Principle 4
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
I acknowledge and follow those principles.
Paragraph 60B.10 of LexisNexis Australian Family Law Annotated Legislation, service 286, cites Maldera v Orbel (2014) 52 Fam LR 24; (2014) FLC 93-602 (‘Maldera’) as:
“This appears to be the first time the Full Court revisited the issue since the pre-2006 version of section 60B was considered in B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; (1997) FLC 92-755”.
The first instance decision of Kent J in Blaze v Grady (2015) 54 Fam LR 172 (‘Blaze’) is also cited by the learned LexisNexis authors.
In Maldera the Full Court made observations that significantly disagreed with earlier observations of some of the effects of section 60B and some of the B and B (supra) observations can no longer be regarded as good law.
The extensive jurisprudence around objects clauses is referred to in Maldera and bears repeating.
[71]Courts have generally treated objects clauses and preambles in legislation in the same way. In effect, the former (and more recently “simplified outlines”) are contemporary versions of the latter. The proper approach to the role of preambles was considered in Wacando v The Commonwealth (1981) 148 CLR 1. At page 23, Mason J (as he then was) said:
…
It has been said that where the enacting part of a statute is clear and unambiguous it cannot be cut down by the preamble. But this does not mean that a court cannot obtain assistance from the preamble in ascertaining the meaning of an operative provision. The particular section must be seen in its context; the statute must be read as a whole and recourse to the preamble may throw light on the statutory purpose and object. There is, however, one difficulty in seeking to restrict the generality of the operative provision by reference to a suggested restriction expressed in the preamble: it is that Parliament may intend to enact a provision which extends beyond the actual problem sought to be remedied. Recognition of this difficulty led Viscount Simonds in Attorney-General v. Prince Ernest Augustus of Hanover to say “that the context of the preamble is not to influence the meaning otherwise ascribable to the enacting part unless there is a compelling reason for it”. See also pp. 460–461, 462–463.
… (footnote omitted)
[72]The Wacando principles have been widely applied to the use and scope of objects clauses. It follows that objects clauses can be used as an aid to the construction of words of legislation (Russo v Aiello (2003) 215 CLR 643). However, intention is to be gleaned from the whole Act and, in addition to objects clauses, regard must be had to other sections (Municipal Officers Assoc of Australia v Lancaster (1981) 37 ALR 559).
[73]Applying Wacando, in S v Australian Crime Commission (2005) 144 FCR 431 at [22] Mansfield J said “[s]uch a [objects] clause cannot cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear”. And, in Minister for Urban Affairs & Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at page 78, Cole JA said that “… whilst regard may be had to an objects clause to resolve uncertainty or unambiguity, the objects clause does not control clear statutory language, or command a particular outcome of exercise of discretionary power”.
[74]Wacando was decided before B & B: Family Law Reform Act 1995 but it seems, was not brought to the attention of the Full Court. We think it is highly unlikely that had the Full Court in B & B: Family Law Reform Act 1995 been invited to consider Wacando that this aspect of the case would have been decided the same way. With Wacando and the cases which follow it in mind, we must respectfully disagree with B & B: Family Law Reform Act 1995 to the extent that that decision held that s 60B does more than provide context, indicate the legislative purpose of the Part and operate as an aid to construction of the Act. Thus, we do not agree that in deciding a parenting case it was necessary to discuss the significance and weight of relevant s 60B factors or that where the outcome of s 60CC deliberations did not enable the court to determine a parenting order, s 60B may be decisive.
[75]Section 60B has been significantly amended including by the Family Law Amendment (Shared Parental Responsibility) Act (2006) (Cth) which inserted at the commencement of s 60B the words “The objects of this Part are to ensure that the best interests of children are met by…” These words do no more than reinforce the relationship between s 60B and s 60CC and put beyond doubt that in relation to how a court determines what is in a particular child’s best interests, the facultative provisions are ss 60CA and 60CC and (where it applies) s 65AA. These words do not operate so as to elevate the role of s 60B beyond that envisaged by Wacando. The same must be said about the court’s ability to take into account “any other fact or circumstance” that the court thinks is relevant (s 60CC(3)(m)). Thus, in its current form, s 60B does no more than provide context, indicate the legislative intention or purpose of the Part and otherwise operate as an aid to construction of the Part and the Act. It follows that we do not agree that the current s 60B can be used to change the ordinary and clear meaning of s 60CC or that where the s 60CC deliberations do not enable the court to determine whether or not a parenting order is in a child’s best interests, s 60B may be decisive.
[76]The fact that at least one of the s 60B objects (s 60B(1)(b)) is replicated in s 60CC (s 60CC(2)(b)) reinforces the point that only one is facultative.
In Blaze (not a Rice & Asplund case) Kent J acknowledges the statements in Maldera and referred to section 15AA of the Acts Interpretation Act 1901 (Cth) and other High Court authorities as to statutory interpretation not expressly referred to in Maldera at [110]-[113] as follows:
[110] Section 15AA of the Acts Interpretation Act provides:
15AA Interpretation best achieving Act’s purpose or object
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
[111]In Mills v Meeking Dawson J in the High Court provided the following explanation of the effect of the equivalent Victorian provision as follows:
... the literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. Section 35 of the Interpretation of Legislation Act must, I think, mean that the purposes stated in Pt 5 of the Road Safety Act are to be taken into account in construing the provisions of that Part, not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open. The requirement that a court look to the purpose or object of the Act is thus more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction. The mischief or purpose rule required an ambiguity or inconsistency before a court could have regard to purpose: Miller v Commonwealth [(1904) 1 CLR 668 at 674]; Wacal Developments Pty Ltd v Realty Developments Pty Ltd [(1978) 140 CLR 503 at 513; 20 ALR 621 at 630]. The approach required by s 35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes. (footnotes omitted)
[112]It follows that s 15AA (and equivalent provisions in State legislation) do not permit a Court to ignore the actual words of a statute and a court is bound to give effect to clear language in a statute even if in the Court’s opinion the result might be anomalous or unfair.
… (footnote omitted)
[113]In this context there is ample authority for the general principle that courts are not at liberty to consider any word or sentence in legislation as superfluous or insignificant. Prima facie, all words in a statute must be given some meaning and effect.
… (footnote omitted)
The observations of the learned authors in Statutory Interpretation in Australia, 8th Ed DC Pearse and RS Geddes at [4.51] is consistent with the observations of the Full Court in Maldera as to the weight to be given to statements of objects or principles underlying them.
In the Full Court decision of Gorman & Huffman and Anor [2016] FamCAFC 174 (‘Gorman’) at [286] Murphy J observed, “Notations are, of course, not orders”. The notation in that case was not a record of an agreement between the parties but imposed by the primary judge with the intention of providing a pathway to revision of the orders at a later time. In Gorman the Full Court found that the primary Judge was in error not to have included any order for the revisiting of the court ordered (supervised time) arrangements notwithstanding the notation, which was also said to have a degree of ambiguity. That there was a pathway in a notation did not save the first instance orders although the Full Court decision rested on bases other than the “Notations are, of course, not orders.”
In this case, consistent with section 60B(2)(d), the parties at the time of the 2017 Final Orders did agree as set out in the notation.
CONCLUSION AS TO NOTATION B
In this case it is not in dispute that notation B was an agreement at the time and of sufficient importance to the parties that the court was asked to note and did note that agreement.
I accept the submission is of the Mother's counsel that such a notation does not and cannot exclude the court's jurisdiction to deal with the matter nor can it prevent the applicable law applying. For example if the parties were to agree, and whether recited in a notation or not, that in any subsequent litigation concerning the children the best interests of the children would not apply or that Part VII of the Act was not to apply, or that the parties were at liberty to make a new application whether the parties chose or for any trivial reasons, obviously neither the court or the parties could not be bound by such agreement.
However the agreement was a significant part of the context in which the orders were made. Part of the context of the orders was the detailed family report released to the parties days before. Part of the context of the orders was the age and maturity of the children at the time the orders were made. I also accept the submission of counsel for the Mother that there are not two rules as to Rice & Asplund, one where there is not such notation and another where there is such a notation. Further the parties cannot contract out of the provisions of Part VII or of Division 12A.
In this case the agreement of the parties, represented by the notation, was not a whimsical or illogical matter or a matter contrary to the best interests of the children. The agreement represented by the notation was entirely consistent with the recently released family report and its recommendations and section 60B(2)(d): parents should agree about the future parenting of their children.
I note the submissions of the Father's counsel that it is commonplace, and I find it is at least not uncommon, in this court that notations to the same effect are recited at the same time as orders are made. Each case has its own context but some general observations can be made. It can be difficult, and for some parents impossible, to chart in court orders the entire childhood of their children. It is not uncommon that parents are able to agree upon the children's living arrangements for certain stages of their children's lives but not for their entire childhood. It is not uncommon that a parent, or one of them, or a family report writer, considers it premature to attempt to fix the living arrangements for years later when the child or children will be of school-age and or at secondary school while those children are very young or in kindergarten or have just commenced school or when the parents' separation is recent. In that circumstance it is not uncommon for parents to agree upon the children's living arrangements for the time being and for the next few years, or at least into the foreseeable future, and to agree that those arrangements be reviewed down the track and on the basis that if the assistance of the court was required either or both parties could seek that assistance in the event agreement by themselves could not be reached. Without the ability to make a new application parties may see an agreement to “review” as mere words and over empowering the parent that prefers, or can live with, the status quo of the existing order in the review negotiations. In some cases the ability to review arrangements, including with the assistance of the court, is significant to the parties in reaching agreement about their children. In those cases the parents may not ever bring any further application notwithstanding that they have agreed or contemplated that such event may occur.
Such agreements when made would not usually conflict with the underlying principles of the rule in Rice & Asplund: that is repeated or frequent litigation concerning the welfare of children will be, or is likely to be, contrary to their best interests. Such agreements when made would be consistent with one of the principles underlying the objects of Part VII of the Act stated at section 60B(2)(d) as cited above, “parents should agree about the future parenting of their children”.
Implicit in the 2017 Final Orders is the authority of the primary Judge in the Family Court of Australia, as it then was, finding that the orders in the context of the notation being agreed by the parents was in the children’s best interests.
In this case I find that the significance of the notation is that it was a clear agreement of the parties at the time of the making of the orders and acknowledged by the court and, along with the family report and the ages of the children and their living arrangements at the time of the orders, is a significant part of the context of orders or “the past circumstances”. In accordance with the general statement of principle at [50] of Marsden & Winch, and at [88] of CDW “the court must look at the past circumstances, including the reasons for the decision and the evidence upon which it was based”.
In this case the past circumstances and/or the context is the agreement recorded in the notations including notation B. Hence I must take the notation into account.
However, contrary to the principle submission of the Father’s counsel, that does not mean that I do not need to consider the Rice & Asplund rule. Rather the agreement recorded in the notation is part of the context and/or “past circumstances” contemplated by those authorities that make up part of what is known as the rule in Rice & Asplund. In the circumstances of this case it is not “meaningless” but it does not bind the court or the parties. I must take the notation into account as part of the rule or test or inquiry commanded by the set of principles known as the line of authorities of the rule in Rice & Asplund and I do.
The weight to such an agreement may be different if included as a court order. But this matter was not discussed before me and I make no comment about it.
The parties did not raise the issues dealt with in Commonwealth v Verwayen (1990) 170 CLR 394. In Carriel it was raised that an order dismissing an application pursuant to the rule of Rice & Asplund may not be a parenting order (see Carriel at [61]). At first brush an order dealing with how parents would resolve a future dispute may be thought to be included in s 64B(2)(i). Not all orders dealing with children’s welfare and litigation are parenting orders, for example an application for a stay of parenting orders pending appeal (Cantrell & North (2019) FLC ¶93-921). The parties did not address these matters and it is unnecessary that I do so to determine the application before me. I proceed on the basis that the best interests of the children is the primary consideration.
THE FAMILY REPORT (2017)
Both parents relied upon the family report, dated five days before the 2017 Final Orders, as supporting his or her case before me. I have taken into account the whole of the report but the following paragraphs are particularly relevant.
[45]Mr Williamson expressed that the basis of his application was that the children experience very different parenting styles in each household and that they need more experience of their fathers parenting style, suggesting that they have more latitude for creative play whilst in his care. He acknowledged that the children's understanding of a four or five day block of time was limited but felt that as they mature they will have more of an understanding of his involvement in their education. He stated that he understood that Ms Parrish was the children's primary carer but that he wanted to ensure that the door was not closed on increased time as the children mature. He stated was open to the current arrangements remaining in place at present if it could be agreed at final hearing to increase the time to more shared parenting in a reasonable timeframe.
………
[59]The current matter is concerned with the question of what parenting arrangements will be most appropriate for X aged 5 years 11 months and Y, aged 4 years 2 months
………
[63]The children have had to adapt to significant changes since separation which Ms Parrish believes they have struggled with and the apparent anxiety of both children would appear to support this view. While Mr Williamson reflects some antipathy towards Ms Parrish's parenting style, believing her to be utilising the children's emotional needs to obstruct his time with the children, this assessment would suggest that Ms Parrish appears to be the more emotionally attuned to the children's needs. Ms Parrish is clearly the primary relationship for both children and further increases of time away from their mother is unlikely to be considered to be in their best interests at this stage of their development, particularly in light of their emotional responses. In addition there are likely to be changes to both Mr Williamson’s employment status and home life and the children would benefit from a lengthy period of settlement to adjust to those changes before any additional time is introduced, to enable both children to settle in primary school and into their father's new home.
[64]The capacity of the parents at this stage to communicate effectively to ensure the success of a more equal shared parenting anangement.is compromised by the current financial conflict. Mr Williamson expresses an expectation that this will resolve once settlement is made, however due to the expectation of ongoing difficulties with education and health decisions being made there is clearly potential for this conflict to remain on-going longer term, due to the parties apparent reluctance to demonstrate any flexibility or good will towards each other for the benefit of the children. It would be beneficial for the parties to engage in mediation once the children are both in full time primary school to reconsider whether the current arrangements are meeting the needs of the children.
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RECOMMENDATIONS
[66]In the absence of evidence to the contrary, the following recommendations are respectfully made:
[67]The court to consider that Parental Responsibility is to be shared equally between Ms Parrish and Mr Williamson in relation to X and Y (the children). Ms Parrish and Mr Williamson to keep the other parent advised of any significant issues when the children are in their care.
[68]The children to live primarily with their mother.
[69]The children to spend time with their father, in line with the current parenting orders of a five day fortnight until the children are more emotionally mature. The parties to attend mediation to consider the timing of any additional overnight prior to January 2019 when Y is then 6 years old and both children will be in primary school.
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[73]Ms Parrish and Mr Williamson would benefit from a period of personal counselling to enable them to manage their personal issues in relation to the separation and to promote their conflict management skills, D Family Centre.
[74]The parties to attend mediation to resolve any future parenting issues.
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(emphasis added)
The Father's counsel referred me to [45], [63], [64] and [69] and submitted, (TP-13 line 46):
And so he waits till both children are well settled in primary school. He waits until they're more emotionally mature.
The Mother's outline of case referred me to [67-69] and [74] and in substance submitted the that the report recommended merely mediation not mediation and litigation if the mediation did not result in agreement.
It is clear the family report observations and recommendations dealt with the children as they were then (almost 6 and just over 4) and at, “that stage of their development …”, and recommended the arrangement then applying (and continued by the 2017 Final Orders) “until the children are more emotionally mature”.
The Mother disputes some of the factual allegations of the Father including that the parental relationship has improved or that the distance and travel time of the father's relocation from one Melbourne suburb to a nearby one is correct or significant. I do not place any weight on the Father's opinions of those matters and place only a little weight on his perception that the parental relationship has improved. To the extent that factual disputes are relevant I must, for the legal reasons outlined, accept the Father's case.
I am unable to find that the current circumstances of the children were within the contemplation of the parties, that is both parents, at the time of the 2017 Orders. That they were possible, or within ordinary human experience, does not mean they were within the contemplation of the parties. Here the parties contemplated neither party raising Rice & Asplund.
Marsden & Winch [50] (1)
As to the first “must look at” command of Marsden & Winch at [50] I refer to the observations of the family report, the text of the orders and the agreement recited in the notation. All are relevant but the most significant matter is the likely change in maturity of the children then almost 6 and just 4 at the time of the orders and now almost 11 and 9 and a bit. There is little evidence or contention as to the maturity of the children then (and what there is can be gleaned from the family report) or now. The children's maturity at the time of the 2017 Final Orders was in the range of maturity to be expected from children of that age. The children's maturity is now likely to be in the range of maturity of children of their current ages with their special needs, but they are likely to be more mature and with different needs at their current age than as at the 2017 Final Orders. The next most significant matter of the first "must look at" command is the general living circumstances of the children. I accept the short summary of those changes of the Father's counsel recited and emphasised above at [31] and I repeat those submissions here, but separated into 5 points as follows:
•… he says these children were four and six at the time; they were living in a house with their mother, alone.
• Whilst she had – it appears she was in a relationship with her now partner. The family report author certainly considered her to have not repartnered. That’s how her relationship status is characterised in the report. And……….one of the changes is that these children acquired a stepfather. That whilst the mother was in a relationship, they were not cohabiting, and the family report author considered the wife, at the time, as having not repartnered
•. These children also acquired two stepbrothers. One of which has autism spectrum disorder; both of whom attend a different school.
• They have also acquired, at the beginning of last year – or – a new half sibling.
• And they have been diagnosed with attention deficit hyperactivity disorder; X in late 2017 and Y in the – in about May of this year…
I find that in all the circumstances, including the following and the combination of them;
·likely significant change in maturity of the children; and
·the different weight that may now be given to their wishes; and
·the fact that by their agreement recited in the notation at the time of the orders the parents then agreed that after two years a further application, if made, should be considered by the court; and
·their significantly different living arrangements; and
·their diagnosis of ADHD;
that there has been a significant change in circumstances.
Marsden & Winch [50] (2)
The Father seeks to change a shared care 5/9 and half school holidays arrangements to an equal shared care arrangement. This is a significant change. If an application is permitted the pathway of section 61DA (see Dundas & Blake (2013) FLC 93-552 at [61] and if an order for equal shared parental responsibility is made then section 65DAA and equal time must be considered and considered seriously. The existing arrangements would support both significant and substantial time and equal time being considered reasonably practical in accordance with section 65DAA(5). Hence as to the second “must look at” command of Marsden and Winch at [50], and for the purposes only of this preliminary hearing, if an application is permitted then I find there is some likelihood, sufficient to find a likelihood, of change of orders in a significant way.
Marsden & Winch [50] (3)
As commanded by the third "must look at" command of Marsden & Winch at [50] I must weigh the nature of the likely changes against the potential detriment to the children caused by the litigation itself which would likely include the impact on the children, and on these particular children, of the litigation including likely being interviewed by a family report writer again and the impact on their parents and the parental relationship.
I take into account the evidence of Mr C and his position as a treating practitioner. It is not clear to me, when the parents have equal shared parental responsibility, how a treating practitioner can provide a medical report to a court at the request of one parent without the other being consulted. For the purpose of this interim hearing I will proceed on the basis that in ways not known to me that is, in this case, entirely proper. I have not been provided with the communication, or request, between the parent/s and the therapist that produced the report.
Mr C expresses concern at the potential impact of litigation on these children. I take that into account. I am told that evidence is controversial. This is a hearing on the papers. I give Mr C's concerns some weight. I take into account the potential impact on the Mother of the intrusion into her household that a hearing would likely impose. I proceed on the basis it would be upsetting to her. I take into account the impact on the Father of his disappointment at the Mother recanting the formal agreement recorded in the notation and being prevented from having a court consider his application for a change of living arrangements when he had long expected to be able to do so. I proceed on the basis it would be upsetting to him. The parents stress may impact upon the children. The impact on the children of litigation will be largely dependent on how the parents protect them from their parent's disagreement about the children's living arrangements. To involve the children would be contrary to their best interests. I do not have any evidence that either parent has involved the children in the dispute to this point. I take into account that the likely family report writer will act in a proper, professional and child focused way. I take into account that the parents have equal shared parental responsibility. I take into account that if the application is not permitted one parent is effectively in control of the children's living arrangements at this time in the children's lives.
I find, on this preliminary hearing on the papers, that the benefit to the children of having their living arrangements reviewed and of permitting the Father to bring an application for significant change at this stage of their maturity is not outweighed by the potential detriment to them of the litigation itself.
CONCLUSION
I recognise that however the Rice & Asplund test or rule or inquiry is phrased it is a manifestation of the consideration of the best interests of the children to the extent that can be considered at a preliminary hearing on the papers. To answer the crisp Rice & Asplund double barrelled question summarised and posed in Grace at [11] and recited above, I find there is a prima facie case of changed circumstances and that the Father’s case is a sufficient change of circumstances that justifies embarking on a hearing.
For the reasons set out above I have decided that the Father, in the circumstances of this case, is not prevented from pursuing his existing application by the rule in Rice & Asplund.
I dismiss the Mother’s application, based on the rule in Rice & Asplund, that the Father’s Initiating Application be dismissed. I will direct the parties to bring in procedural orders for a final hearing.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 28 January 2022
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