Woods & Carman
[2022] FedCFamC1F 545
Federal Circuit and Family Court of Australia
(DIVISION 1)
Woods & Carman [2022] FedCFamC1F 545
File number(s): WOC 172 of 2017 Judgment of: ALTOBELLI J Date of judgment: 4 July 2022 Catchwords: FAMILY LAW – PARENTING – Rice & Asplund – Where father seeks variation of consent orders on the basis of a change of circumstance being that the mother contravened the consent orders by relocating with the child – Where the mother seeks that the application be dismissed on the basis that the father relocated internationally thereby rendering the operation of the consent orders futile – Finding that in circumstances where the subject child is now aged 17, continuing litigation in a high conflict and high mistrust co-parenting relationship would not be in the best interests of the child – Application dismissed. Legislation: Family Law Act 1975 (Cth) Cases cited: Baisman & Cartmill [2022] FedCFamC1A 36
Rice & Asplund (1979) FLC 90–725; [1978] FamCA 84.
Stern & Colli [2022] FedCFamC1A 95
Division: Division 1 First Instance Number of paragraphs: 18 Date of hearing: 4 July 2022 Place: Sydney The Applicant: Litigant in person The Respondent: Litigant in person ORDERS
WOC172 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CARMAN
Applicant
AND: MS WOODS
Respondent
order made by:
ALTOBELLI J
DATE OF ORDER:
4 JULY 2022
THE COURT ORDERS THAT:
1.The Initiating Application filed by the Father on 4 February 2021 is dismissed.
2.The Application in a Case filed by the Father on 4 February 2021 is dismissed.
3.The Application in a Proceeding filed by the Father on 31 March 2022 is dismissed.
4.All other extant applications are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Woods & Carman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)ALTOBELLI J:
This case is about X, who was born in 2005. X will shortly turn 17. The father is the Applicant in the applications heard today and the mother is the Respondent. The proceedings took place by way of Microsoft Teams, the mother located in rural Victoria, and the father who is currently living in Country H but tells me that he is shortly to return to Australia.
The genesis of this litigation appears to be the consent orders that the parties entered into on 27 November 2019 (“the consent orders”). The consent orders were made by Benjamin J, as he then was. In very broad terms, the orders provide for equal shared parental responsibility, for X to live with his mother and spend time with his father. X and his mother were living in E Town at the time. It is less clear where the father was living at the time, though he gave his address as being E Town. The orders contain a number of other provisions including an order restraining the mother from relocating. As it turns out, the mother has relocated to rural Victoria.
The matter came before the Court in this fashion. The father filed a substantive application on 5 February 2021 in which he sought to vary the consent orders. He sought the consent orders be varied such that they provide that the father have sole parental responsibility, that X live with him and spend time with the mother. He also sought interim orders compelling the mother and X to return to E Town and, if not, that there be a recovery order. The father advises the Court that he is not proceeding with that application which I think this is quite proper and wise, because it is an application that would, with respect, be doomed to fail for reasons that will be provided.
The Court therefore is left to hear the two remaining applications in a case. The first was filed by the father on 5 February 2021 in which he sought interim orders similar to those sought in his substantive application and which I infer is also not pressed. The second was filed on 31 March 2021 in which he seeks a number of orders, the substance of which are as follows: first, that the father be awarded costs incurred relating to the proceedings that culminated in the consent orders; second, that the Court make an order in relation to an inheritance that X was supposed to receive; and lastly, that the Court make an order compelling the mother to disclose X’s home address to the father. The mother’s response to all of this is simply to seek dismissal.
THE APPLICABLE LAW
The matter originally presented as being what is known as a Rice & Asplund application, per the rule in Rice & Asplund (1979) FLC 90–725. In many respects it still bears some of those characteristics. Insofar as the case is a Rice & Asplund case, the applicable law is referred to in two decisions of the Full Court.
In the Full Court judgment of Baisman & Cartmill [2022] FedCFamC1A 36, Tree J summarises from a number of Full Court cases the relevant principles of the rule in Rice & Asplund:
[11] The so-called rule in Rice and Asplund (1979) FLC 90-725 (Rice & Asplund ) is based on the notion that it will only be in a child’s best interests to expose them to further litigation if there has been a significant change in circumstances since the previous parenting orders were made. The rule has now been considered by a number of Full Courts, although it may fairly be said that the application and operation of the rule remains somewhat opaque. An analysis of those cases, demonstrates that the following relevant principles may either be drawn directly from them, or otherwise logically arise:
(a) The rule is but one manifestation of the best interests principle;
(b)However best interests are not the only consideration relevant to the application of the rule, with other considerations including public policy issues such as the finality of litigation, and practical matters, such as the stage of the litigation at which the rule is being considered and the nature of issues involved in the several pieces of litigation;
(c)The rule requires there to be a sufficient change of circumstances to justify the re-litigation;
(d) The rule can be applied at any stage of the proceedings;
(e)The effect of the operation of the rule will vary depending upon the time of its application, or more precisely the stage of the litigation when the rule is being applied;
(f)If the rule is considered prior to trial, it may be invoked by way of an application for summary dismissal (in which case the court is likely to proceed on the basis of taking the applicant’s case at its highest and not permitting cross-examination) or alternatively may be dealt with by way of preliminary issue (in which case cross-examination may be permitted and findings of fact made);
(g)If the rule is raised and considered at trial, most of the evils which the rule is intended to overcome or ameliorate will have already ensued. In considering whether it may be appropriate for the application of the rule to be determined as a preliminary point at trial, factors which may influence that decision will include the dislocation of the trial process if there is a reserved judgment, and the additional delay involved. Converse considerations may be the cost to the parties of any trial if indeed the rule’s application at the end of the trial sees re-litigation impermissible;
(h)The rule may also be dealt with at trial by way of something akin to a no case submission, but similar considerations to the determination of the matter as a preliminary issue at trial would again arise;
(i)Logically, the extent of revisitation of prior orders sought by an applicant will be relevant in determining the likely impact of any re-litigation on the child. Arguably, if only a small variation of prior orders is sought, the impact on the child is likely to be less;
(j)Likewise, the court may only permit re-litigation on one or some of the issues sought to be re-agitated by the applicant, if doing so is in the child’s best interests, or conversely, a wider scope of re-litigation is not in the child’s best interests;
(k)Logically, it must be relevant whether or not the prior orders were made by consent, or at the end of a trial, or consequent upon an undefended hearing, and in any case, also relevant will be the circumstances by which the orders came to be made (eg if they were made at an early stage of the proceedings or after lengthy litigation);
(l)The parties will be bound by any findings of fact actually or implicitly made in prior orders, at least to the extent that they were necessarily made to quell the controversy;
(m)It will be a matter for the trial judge as to whether under s 69ZQ of the Family Law Act 1975 (Cth) (“the Act”), evidence should be restricted only to matters post-dating the last orders, or alternatively, if leave to re-litigate is given, it might be conditional upon a limitation of issues or temporal scope of evidence;
(n)Irrespective of the stage the litigation is at when the rule is considered, the determination remains merits based and is not a technical one
In the Full Court case Stern & Colli [2022] FedCFamC1A 95, the Court summarises the relevant law:
[33] In Marsden & Winch this Court said:
57. In Miller & Harrington (supra) the Court posed the question:
105.Adapting the language used by Warnick J in SPS and PLS [supra], 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. 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.
[34] These remarks were applied or referred to without disapproval by subsequent Full Courts in Searson & Searson (2017) FLC 93-788 and Shan & Prasad (2020) 61 Fam LR 440 at [41] .
[35] In Defrey & Radnor [2021] FamCAFC 67 after considering what was said in SPS and PLS (2008) FLC 93-363 at [81] and [84], Miller & Harrington (2008) FLC 93-383 at [105] and Marsden v Winch at [58] the Full Court summarised the law concerning Rice and Asplund as follows:
19.In our view, the Rice & Asplund test applies to all applications which seek to revisit parenting orders. Sometimes the test will be easily satisfied even though the issues to reconsider are major ones and sometimes the test will be easily satisfied even though the issues to be revisited are relatively minor in character. In both situations, the overarching test is to be applied, namely, (having regard to the best interests of the child) new events or changed circumstances have to be sufficient to provoke a new inquiry.
20.It is also useful when considering, as a preliminary matter, what issues a parent might be permitted to re-litigate, to remember that under s 69ZQ(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), there is a mandatory requirement to decide which of these issues in the proceedings require full investigation and hearing.
21.The rule in Rice & Asplund involves the exercise of discretion and not merely a process of making factual findings. That is because the “rule” is a manifestation of the best interests principle. All s 60CC(2) and (3) matters, so far as they are relevant, must be considered, to the extent that they can be, based on the material before the court. The rule focuses particularly on s 60CC(3)(l) and the preference to make final orders in parenting matters that are least likely to lead to the institution of further proceedings in relation to the child. Axiomatically that is because unless other considerations are more weighty, it is not in the best interests of a child for that child to be the subject of repeated litigation between his/her parents. There is a focus in an application of this kind upon the change(s) in circumstances that outweigh the negative impact of reopening litigation. Although when considering the preliminary issue, if cross-examination is not permitted, then the evidence of the father is to be taken at its highest, and it is not only the father’s evidence that is considered.
22.Consequently, the challenge to the primary judge’s discretionary decision is one to which the normal principles in House v R (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513 apply. The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the 2015 orders and secondly, to assess whether or not the father had established that these changes are sufficient to provoke a new inquiry, or put in another way, whether the father has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child’s best interests.
the evidence
The father, through chambers, indicated he relied on all of the affidavits that he had filed in 2022, which refers to:
(a)His affidavit filed 11 March 2022;
(b)His affidavit filed 31 March 2022;
(c)His affidavits filed 5 April 2022;
(d)His affidavit filed 17 June 2022; and
(e)His affidavit filed 24 June 2022.
The mother relies on the following material:
(a)Her affidavit filed 6 April 2021; and
(b)Her affidavit filed 1 March 2022.
The Court notes that in respect of these affidavits there is considerable overlap in terms of the material.
discussion
Both parties represented themselves in this matter. The Court has to make a decision that is consistent with the Family Law Act 1975 (Cth) (“the Act”). The parties did the best they could do under the circumstances. I certainly understood the substance of the arguments that they were each making, but they were not legally represented. I am satisfied that I understand what they were trying to achieve.
By way of general impression, it must be noted that it is unfortunate, especially for X, that the parties still seem to be locked in what appears to be an intense conflict about aspects relating to X, so many years after the separation. It is inevitable that X is aware to some extent of what is happening between the parties, and one of the most important things the Court can achieve is, if appropriate, to take away this litigation so that he does not directly or indirectly continue to feel the burden of it. Unfortunately, both parties present with many of the characteristics of being involved in high conflict. There is a palpable lack of mistrust between them. Communication, if it exists, seems to be highly problematic.
There is a real issue in this case about where exactly the father lives as opposed to where he works. The impression that I have formed having heard from both the father and the mother, and having regard to the affidavits that they have filed, is that even if he spent considerable time in Australia in 2019 – the year when the order was made – it is also clear that he was spending considerable time out of Australia during that year. The father tells me, and I accept, that the last physical contact he had with X was in probably early 2020, and that from March 2020 he went overseas and has not seen X since. The significance of this goes to the question of the orders and whether they were capable of being complied with by either parent.
It is curious that both parents say that the other did not comply with the provisions of the order, and there is more than an element of truth in that. Because of the changes in their circumstances – the mother relocating from E Town with X, and the father being absent overseas for such a long period of time – it is clear that neither could have complied with the consent orders. But as it stands X is nearly 17 and the Court has to ask itself as a matter of reality what role it can play in his life given his age and maturity.
It is very encouraging that the father’s evidence is that he continues to have communication with X. He says at paragraph 46 of his affidavit of 11 March 2022 that, “X continues to call me every second day and has for a long time”, and they share a good relationship. Certainly, the basis for continuing that relationship is clearly present. However, legal disputes under the Act have to be determined in accordance with the Act, and there are three issues that present in this case.
First, the father wants me to revisit an order concerning costs made on 27 November 2019. Order 21 provided that there is no order for costs and that each party was to pay their own costs. The father asks the Court to revisit that order, but is unable to articulate the statutory basis for doing so. This is not an appeal, and so it is not my role to consider the merits or otherwise of his application in that regard. In any event, the father would have to find that there was an error of law, and there is none that is readily discernible from his material. The Court simply lacks any power to make any further order in relation to costs in circumstances where this is the order that the parents consented to.
The father’s frustration is understandable. From his perspective, the orders have not been complied with by the mother, and he might, as a lay person, believe that, in the circumstances, he should not be bound by any of the orders, including the costs order. His characterisation of the situation is perhaps subjective because the strong impression formed is that the orders could not be complied with as he was living overseas for most of the time that these orders were in place, and, in any event, it is noted that both parents believe that the other did not comply with the orders. Nonetheless, the present decision is made on the basis that there is no power to make any order consistent with that sought by the father in substance, so there is nothing the Court can do in relation to that.
Second, a similar problem arises in relation to the orders sought by the father in substance in relation to what was described in the documents and in submissions as an inheritance. The Court lacks any power to make such an order. In relation to both issues, even if a power could be found, the Court would not, in the exercise of its discretion, exercise such power in circumstances that are largely created by both the parents as a result of the impracticability of the orders that they entered into for no reason other than their own actions.
The last issue is whether or not the Court should make an order that discloses to the father the home address of X, and in effect, the mother. The father submits there is no basis for the father to not know the address and stresses that X should not be placed under the emotional burden of not telling his father where he lives. The mother submits that she is concerned about disclosing this. Whether or not the relationship was, as she characterised to me, one in which she may well have felt was controlling or burdensome to her is not something that I can adjudicate on, but the reality is that she would feel most uncomfortable for the father to know where she lives in the circumstances where he has not been in Australia for such a long period of time.
Clearly this is a high-conflict case with a high level of mistrust between the parents. It must be asked: what is the need for the father to know where X, and therefore where the mother lives? Particularly in circumstances where the mother submits the father knows of X’s school address. He has a postal address. He clearly has an email address and a telephone number. In the context of a high-conflict case where there has been such a long time of no physical contact between the parents, it is unclear why the father needs to know and, in particular, how it is in the best interests of a nearly 17-year-old child for his father to know where he lives.
The reality for both of these parents is this: X is old enough now to make his own decision about whether or not the father knows where he lives. Based on my experience in this jurisdiction over many decades, with the greatest of respect to the parents, the more pressure the parents place on X to take sides on this issue is ultimately counterproductive to their own relationship with him. Assuming that the Court does have the power to make the order proposed by the father, this is a case where the Court would exercise restraint and not, in its discretion, make the order.
This litigation has been going on for far too long. Even if they were not changed circumstances, and the Court might be inclined to accept that the circumstances have changed, even if it is just because the mother had relocated and the father could not return or would not return to Australia, this is one of those cases where the Court would have concluded that it is not in the best interests of X for this litigation about him to continue. The impression formed is that there is a risk that on the father’s return to Australia, there could be further proceedings, especially contravention proceedings. I am not sure how X would benefit from that, and I would counsel both parents to think very carefully about any further litigation in relation to X.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 4 July 2022
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