FAMILY LAW – APPEAL – CHILDREN – Where final parenting orders were made in 2004 in relation to the child – Appeal from the decision of the Federal Magistrate dismissing the father’s application seeking a variation of the 2004 orders upon application of the principles in Rice and Asplund (1979) FLC 90-725 – Whether the Federal Magistrate correctly applied the principles Rice and Asplund – Where a family report was prepared and tendered by consent prior to the Federal Magistrate’s consideration of the Rice and Asplund issue – Once the family report had failed to bring about a negotiated resolution, it was open to the Federal Magistrate to entertain the application for the proceedings to be dismissed – Whether the Federal Magistrate gave inappropriate weight to the family report – Her Honour did not give the family report any more weight than was appropriate – No appellable error found – Appeal dismissed. FAMILY LAW – APPEAL – COSTS OF THE APPEAL – In circumstances where the father was wholly unsuccessful – Father to pay the mother’s costs of the appeal.

DL & W [2012] FamCAFC 5 (25 January 2012)

Last Updated: 30 January 2012

FAMILY COURT OF AUSTRALIA

DL & W

[2012] FamCAFC 5

FAMILY LAW – APPEAL – CHILDREN – Where final parenting orders were made in 2004 in relation to the child – Appeal from the decision of the Federal Magistrate dismissing the father’s application seeking a variation of the 2004 orders upon application of the principles in Rice and Asplund (1979) FLC 90-725 – Whether the Federal Magistrate correctly applied the principlesRice and Asplund – Where a family report was prepared and tendered by consent prior to the Federal Magistrate’s consideration of the Rice and Asplund issue – Once the family report had failed to bring about a negotiated resolution, it was open to the Federal Magistrate to entertain the application for the proceedings to be dismissed – Whether the Federal Magistrate gave inappropriate weight to the family report – Her Honour did not give the family report any more weight than was appropriate – No appellable error found – Appeal dismissed. FAMILY LAW – APPEAL – COSTS OF THE APPEAL – In circumstances where the father was wholly unsuccessful – Father to pay the mother’s costs of the appeal.

Family Law Act 1975 (Cth)

Bennett and Bennett (1991) FLC 92-191 B & J [2009] FamCAFC 103 Caracini & Paglietta [2009] FamCAFC 188 CDJ v VAJ (1998) 197 CLR 172 Freeman and Freeman [1986] FamCA 23; (1987) FLC 91-857 Goode and Goode [2006] FamCA 1346; (2006) FLC 93-286 Gotch & Gotch [2009] FamCAFC 3 Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 House v The King [1936] HCA 40; (1936) 55 CLR 499 King and Finneran [2001] FamCA 344; (2001) FLC 93-079 Marsden v Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1 McEnearney and McEnearney (1980) FLC 90-866 Miller & Harrington (2008) FLC 93-383 Reid & Lynch (2010) FLC 93-448 Rice and Asplund (1979) FLC 90-725 SPS and PLS [2008] FamCAFC 16; (2008) FLC 93-363 Zabaneh and Zabaneh [1986] FamCA 18; (1986) FLC 91-766

APPELLANT:

Mr DL

RESPONDENT:

Ms W

FILE NUMBER:

MLC

9895

of

2009

APPEAL NUMBER:

SA

97

of

2010

DATE DELIVERED:

25 January 2012

PLACE DELIVERED:

Perth

PLACE HEARD:

Melbourne

JUDGMENT OF:

May, Thackray and Strickland JJ

HEARING DATE:

29 July 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

1 December 2010

LOWER COURT MNC:

[2010] FMCAfam 1345

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Hault

SOLICITOR FOR THE APPELLANT:

Hall & Wilcox

COUNSEL FOR THE RESPONDENT:

Mr Puckey

SOLICITOR FOR THE RESPONDENT:

T J Mulvany & Co

ORDERS

(1) The appeal be dismissed.
(2) The appellant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym DL & W has been approved by the Chief Justice pursuant to s 121(9)(g) of theFamily Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 97 of 2010
File Number: MLC 9895 of 2009

Mr DL

Appellant

And

Ms W

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is the father’s appeal against an order of Federal Magistrate Hughes made on 1 December 2010 dismissing his application for parenting orders.
2. The father had sought a variation of parenting orders made in 2004 relating to his daughter, now aged 13 years. The mother persuaded the Federal Magistrate to dismiss the application prior to a full hearing on the merits.
3. The father claims her Honour erred in applying the “rule” in Rice and Asplund (1979) FLC 90-725. He submits circumstances had changed sufficiently since 2004 to warrant a full hearing.

Background

4. The background facts, as found by the Federal Magistrate, are uncontentious. The need for the detail relating to the litigation history will become apparent.
5. The mother and father lived together from December 1998 until March 2002.
6. There is one child of their relationship, the child G, who was born in January 1999 and was therefore nearly 12 when the order appealed was made.
7. The mother has two older children who were aged 19 and 16 at the time of the hearing. Those children also live with the mother and the child G.
8. In June 2002, shortly after separation, the father commenced proceedings seeking parenting orders concerning the child G. Various interim and procedural orders were made in August 2002 and in May, June and September 2003.
9. A final hearing was conducted over three days in September/October 2003, at which time the child was four years of age. A family report was not prepared.
10. After the hearing concluded, but before delivery of judgment, the child was diagnosed with leukaemia and commenced a course of intensive chemotherapy. She spent significant periods of time in hospital.
11. In April 2004, further interim orders were made dealing with the father’s time with the child and other arrangements whilst she was hospitalised.
12. Orders were made on 6 October 2004 (“the final orders”) providing for joint parental responsibility and for the child G to live with the mother. The final orders allowed the father contact each alternate weekend from after school Friday until start of school on Monday, as well as overnight time every Wednesday. The child was also to spend half of all school holidays with the father.
13. Following an application made by the mother in August 2005 there was a slight variation to the final orders.
14. In August 2006, the father filed a contravention application, alleging seven breaches of the orders. That application came before the Court in December 2006, at which time two counts were dismissed on the basis there was no case to answer. A further slight variation was made to the existing orders and the proceedings were adjourned to February 2007.
15. In February 2007, the rest of the contravention applications were dismissed by consent, and orders were made providing for the parents to attend family dispute resolution. It was agreed the father should pay the mother’s costs. There was a slight variation to that order in April 2007.
16. There were no proceedings between the parties in 2008, but the proceedings giving rise to this appeal commenced on 6 November 2009, when the father sought to discharge all of the previous parenting orders. He proposed instead there be a further order for equal shared parental responsibility and that the child G live with both parents in an equal shared care arrangement.
17. The father’s original proposal was for a week-about regime; however, he amended his application on 17 November 2009 to seek, in the alternative, a regime in which the child would spend six out of 14 nights with him. This involved the child spending time with the father in the first week of the cycle from after school on Wednesday until Friday morning and in the second week from after school on Thursday until Monday morning. The father proposed that the child continue to spend time with him for half of all school holidays.
18. The father’s application first came before Hughes FM on 8 February 2010, at which time the mother sought the dismissal of the application on the basis of the rule in Rice and Asplund. The father proposed that a report be prepared in relation to the child’s views and the mother consented to an order to that effect.
19. The order for preparation of the family report directed the Family Consultant to ascertain the child’s views not only “in relation to the time she spends with each parent”, but also “the high school she will attend next year”. This order was made as the parents were also in dispute concerning the child’s schooling.
20. The proceedings were adjourned for mention or interim hearing on 6 May 2010, but the matter could not proceed as the report was not completed. The proceedings were adjourned to 11 June 2010.
21. The report of the Family Consultant was tendered by consent at the hearing on 11 June 2010. The parties were still unable to reach agreement about the child’s schooling. The mother continued to seek the immediate dismissal of the father’s application, while the father maintained that the Rice and Asplund issue should be heard as part of a substantive trial.
22. The Federal Magistrate listed the matter on 1 October 2010 for argument about the “threshold issue as a discrete issue” and to deal with the schooling dispute. However, the matter had to be administratively adjourned to 1 December 2010.
23. The father was represented by counsel at the hearing on 1 December 2010. The mother was unrepresented. After hearing submissions, the Federal Magistrate delivered her reasons ex tempore and made the order giving rise to this appeal. The question of which school the child G should attend was the subject of a consent order. The Federal Magistrate in dismissing the father’s application for parenting orders also dismissed the mother’s application for costs.

The Family Report

24. The father’s appeal ultimately focussed on the use the Federal Magistrate made of the report of the Family Consultant. We therefore propose to set out in some detail the findings the Federal Magistrate made about the report.
25. The Family Consultant interviewed the child G on 20 March 2010; however, when reviewing his notes leading up to the hearing on 6 May 2010, he said he found “some significant ambiguity and inconsistencies” about what the child had told him. The Family Consultant said he felt he had no option other than to interview the child again, which he did on 8 May 2010 (in the mother’s home) and on 15 May 2010 (in the father’s home).
26. The Family Consultant’s report recorded that his notes indicated that when he had first seen the child G in March 2010 she had said “one week at a time is best”. Later in that interview the child said she thought of each parent’s house “as home” and that “both are good options [for her to stay]”. However, the Family Consultant had noted that the child had also said she did not always want to go to her father’s house and prefers to be at home, meaning with her mother. He also recorded that the child said she missed her brother and sister and the pets she has at her mother’s home, “but not if she is not gone for too long”. She also spoke of having lots of fun at both parents’ home.
27. The Family Consultant’s report recorded that in his subsequent conversations with the child she had clarified her views by saying:

When I said “One week at a time is best” I meant I sorta know that it was the fairest...but I like it like it is now... I don’t really want to go one week with Mum and one week with Dad... I don’t miss mum, my brother and sister if it isn’t too long.

28. The Family Consultant commented that in his conversations with the child in May 2010 she had “become a little intransigent about even considering slightly different configurations for how she would spend her time with her parents”.
29. The Family Consultant concluded his report by noting that the child was:

...an articulate and relatively mature young woman whose views about her future care became relatively clear and consistent for me throughout the course of our conversations: she wants to live with her mother...and (significantly) with her sister and brother...and, she would like to continue to have the opportunity to spend significant time with her father...much of the order of that which she currently has.

30. The Family Consultant went on to say that he thought “the limited but real ambiguity” in the child’s wishes had two principal sources, namely:

... [the child], like many children her age, wants arrangements for her care to be “fair”; and

... She is also balancing the competing expectations of her parents as her exposure to and awareness of their conflict increases.

31. The Family Consultant recommended a new arrangement, which he considered would be consistent with the child’s views. This involved her spending time with the father from after school on Thursday to the commencement of school on Monday in the first week of the cycle, and from after school Thursday to the commencement of school on Friday in the second week of the cycle. As the Federal Magistrate noted, this proposal did not increase the child’s time with the father, although it did consolidate it in the first week of each fortnight.
32. The Federal Magistrate noted that the Family Consultant had set out the reasons why he thought this new arrangement would be advantageous, but her Honour did not detail those reasons in her judgment.

The Federal Magistrate’s reasons

33. After setting out the parties’ respective positions, the Federal Magistrate noted that the matter had been listed for hearing in relation to “the rule in Rice & Asplund as a preliminary matter”. Her Honour also noted that earlier that day she had made consent orders dealing with the issue about the high school the child would attend.
34. The Federal Magistrate then set out the background facts, and the details of the family report, which we have already recorded.
35. Her Honour next dealt with the legal principles. She began by observing that while power exists to allow a court to vary parenting orders, “a court must be satisfied that the circumstances warrant a further final hearing in relation to the parenting arrangements”. As authority, her Honour recited the “rule” stated as follows by Evatt CJ in Rice and Asplund (1979) FLC 90-725 at 78,905-06:

The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that...there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material. ...

36. The Federal Magistrate then noted that the father had argued there were three main changes in circumstances which justified a further trial.
37. The first matter relied upon was the child’s age. When the matter was heard in 2003, the child was an “infant” whereas “she is now entering into adolescence”. Her Honour accepted that the child’s “physical, emotional and intellectual needs will certainly have changed over that period”.
38. The second change in circumstances concerned the child’s health. At the time the final orders were made the child had been undergoing treatment for leukaemia for eight months, whereas she was now well and only required “long-term follow-up and monitoring” rather than intensive treatment.
39. The Federal Magistrate recorded the mother’s contention that the health issue did not constitute a change in circumstances because, although the child had been diagnosed with leukaemia after the trial concluded, the judicial officer had been aware of that fact before he delivered judgment, and had made interim and final orders specifically addressing issues arising from it.
40. The third change in circumstance concerned the child’s views. In dealing with this, the Federal Magistrate accepted there had been no family report in the earlier proceedings, whereas the child was “now of an age where her views are likely to carry substantial weight and are a very relevant consideration in any determination about where she lives and with whom she spends time”.
41. Her Honour then recorded the mother’s argument that the Family Consultant had made clear the child did not want to spend any more time with her father than the current arrangements provided. Her Honour commented that counsel for the father had correctly pointed out:

...that it is not the views of the child simpliciter that are to be taken into account; rather, the court must also consider other factors such as the child’s maturity and her understanding of the long-term implications of the expressed views in assessing the weight to be given to those views.

42. The Federal Magistrate next recorded the father’s argument that dismissal of his application on the basis of what had been said in the family report effectively allows “trial by report”, and elevates the status of the report above what is appropriate in determining the child’s best interests. Her Honour accepted that the evidence of the Family Consultant was untested, and noted that both parties had expressed dissatisfaction with aspects of the report and would be likely to challenge those aspects at a trial. She further commented:

... [the Family Consultant’s] report is also only one part of the total evidence which would be relied upon by the parties in conducting a trial. The significance of his evidence would need to be assessed in light of all of the evidence. I agree this is the normal and appropriate course.

43. The Federal Magistrate then recorded the father’s submission that it was too late to deal with the Rice and Asplund argument as a preliminary matter, since both parties had filed affidavits and the family report had been prepared. Her Honour agreed that “the preliminary argument ought to have been heard and determined when the matter first came before [the Court either] in December 2009 or February 2010”. She observed, however, that the matter might have been argued in February 2010, but the father had pressed for the report about the child’s views, whereas the mother had wanted the Court to put an end to the litigation. The Federal Magistrate noted that the mother had nevertheless agreed to the report, which her Honour had been happy to order because she “hoped, perhaps naively, that the parties might benefit from the report and use it to reach a non-litigated outcome”.
44. The Federal Magistrate noted that if the matter was to proceed, the trial was likely to take three days, and that she could not hear a matter of that length until at least mid 2011. She observed that if that occurred, both parties would file more material. The Federal Magistrate also noted the mother’s claim that she had always taken leave without pay whenever the child was hospitalised or needed treatment which prevented her attending school. The mother said she would have to take more leave to prepare for a trial because she could not afford representation.
45. Her Honour observed that the mother “was clearly stressed today and believes that that stress would be maintained until the end of the final hearing”. She noted that the mother believed the child and her siblings would “be adversely affected by that stress”. She recorded that the mother had no confidence that a trial would end the litigation as she alleged the father “constantly seeks changes to [the child’s] arrangements”. Her Honour noted that the fact the parties had been in litigation in five of the six years since the final hearing “lends weight to that concern”, and that it was apparent the parties had “a highly acrimonious relationship”.
46. The Federal Magistrate next noted that an issue had been raised indirectly in the material filed, although it had not been raised in oral submissions, namely the effect of the 2006 amendments to the Family Law Act 1975 (Cth) (“the Act”). Her Honour noted that the mother’s affidavit indicated that the father “has referred on at least five occasions during 2008 and 2009 to the legislative amendments in a way which suggests he believes the law now entitles him to an equal time arrangement”. Her Honour observed this was not the case and said she presumed the father had now been appropriately advised to that effect.
47. The Federal Magistrate next referred to SPS and PLS [2008] FamCAFC 16; (2008) FLC 93-363, where Warnick J, in reviewing authorities relating to Rice and Asplund, had specifically noted that the 2006 amending legislation provided that the amendments were not in themselves to be treated as constituting changed circumstances that would justify variation of a parenting order. However, her Honour noted that Warnick J had also found that whilst the legislative amendments did not constitute changed circumstance for the purpose of the “rule” in Rice and Asplund, “a change in relevant facts may take on a significance because of the legislative amendments that it would not have possessed before them” (at 82,456).
48. The Federal Magistrate expressed her agreement with that proposition and noted that, as the parties agreed there should be an order for equal shared parental responsibility, the Court would need, if the matter went to trial, to consider whether an order for equal time was in the child’s best interest and, if not, whether an order for substantial and significant time was in her best interests. Her Honour noted that the current arrangements already provided for the father to have substantial and significant time.
49. In the remaining paragraphs of her judgment, the Federal Magistrate gave her reasons for deciding to dismiss the father’s application. We will refer to these when we come to consider the grounds of appeal.

Appellate principles

50. The appellant must establish that the Federal Magistrate acted upon a wrong principle, allowed extraneous or irrelevant matters to affect her decision, mistook the facts, failed to take into account a material consideration or reached a result that is unreasonable, unjust or plainly wrong: House v The King [1936] HCA 40; (1936) 55 CLR 499.
51. As Stephen J stated in Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 at 519 - 520:

The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.

52. We accept that the present matter proceeded “on the papers”; however, the Federal Magistrate did have the advantage of observing the mother on more than one occasion and was able to gauge her level of stress, which was of sufficiently high level to warrant her Honour referring to it.

The grounds of appeal

53. The grounds of appeal were expressed as follows:
    1. Federal Magistrate Hughes incorrectly applied the law in Rice and Asplund.
    2. Federal Magistrate Hughes made a finding of fact that re litigating the matter was not in the best interests of the child, without any evidence to support the finding and without testing the evidence in the family report.

3. Federal Magistrate Hughes erred in the exercise of her discretion.

54. As was pointed out by counsel for the mother, and accepted by counsel for the father, similar submissions were advanced in support of each of these grounds, and in reality the complaint was that the Federal Magistrate should not have dismissed the father’s application in the particular circumstances of the case.

Overview of the father’s submissions on appeal

55. Counsel for the father submitted that since the final orders were made, there had been a number of significant changes in circumstances, namely:
    • the child was now 12, whereas she was only 5 when the final orders were made;
    • prior to the final orders being made, the child had been diagnosed with leukaemia, but is now in remission and is fit and healthy;
    • the child has expressed a view she would like to spend more time with the father “by way of spending equal time with both her parents”;
    • there was no family report in the proceedings leading to the making of the final orders, whereas in the present proceedings there was a family report “that supports the [father’s] application”; and
    • the Family Consultant “suggested changes to the current arrangements”.
56. It was submitted on behalf of the father that once a change in circumstance has been established, an application for parenting orders must be determined in accordance with the “legislative pathway” outlined in Goode and Goode [2006] FamCA 1346; (2006) FLC 93-286, which requires consideration of all of the relevant factors contained in s 60CC of the Act.

Overview of the mother’s submissions on appeal

57. Counsel for the mother drew attention to the facts that:
    • whilst the final orders may have been made in 2004, the arrangements made by those orders had been revisited and varied on a number of occasions up to and including 2007;
    • the parties had been engaged in litigation for at least part of every year since they separated, other than 2008.
58. In light of these facts, it was submitted that the mother had “sought to avoid the impact of the proceedings upon the child and herself” by seeking the dismissal of the further application. It was noted that the father was still able to spend time with the child for five nights each fortnight and half the school holidays.
59. The mother submitted that the Federal Magistrate had applied Rice and Asplund in “text-book circumstances”, and that, given her decision involved the exercise of judicial discretion, the appeal should be dismissed.

Relevant law

60. As Evatt CJ said in Rice and Asplund, a court “should not lightly entertain” an application to reverse earlier parenting orders. The stated rationale of the then Chief Justice was the avoidance of the “endless litigation” that might otherwise ensue, since “change is an ever present factor in human affairs”.
61. As we have earlier recorded, Evatt CJ suggested (at 78,905) that a court would only hear an application to vary an earlier order if it were satisfied that there:

...is some changed circumstance which would justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material...

62. Evatt CJ acknowledged the infinite variety of circumstances that would warrant application of the principle she had stated, and she also effectively found there was no “right” time for it to be considered. This is apparent from what her Honour said in the following passage (at 78,905-78,906):

These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.

63. Evatt CJ’s views were endorsed by the other members of the bench in Rice and Asplund and have been routinely followed ever since, including after the 2006 amendments to the Act. For recent discussions of the “rule” by the Full Court see Reid & Lynch (2010) FLC 93-448, B & J [2009] FamCAFC 103, Marsden v Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1, Caracini & Paglietta [2009] FamCAFC 188 and Gotch & Gotch [2009] FamCAFC 3.
64. The policy considerations underpinning the “rule” were explained in McEnearney and McEnearney (1980) FLC 90-866, where Nygh J said at 75,499:

...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.

65. The debilitating effect of ongoing litigation on children and parents alike was emphasised by Strauss J in this passage in Freeman and Freeman [1986] FamCA 23; (1987) FLC 91-857 at 76,470-71:

Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family. It is financially burdensome. ...The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. ...

66. The likely adverse impact of litigation on children has also been recognised in the High Court. In CDJ v VAJ (1998) 197 CLR 172 at 204 [118] McHugh, Gummow and Callinan JJ (albeit in a different context) said:

... So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.

67. The legislation itself now expressly directs judicial officers to have regard to the potential impact of proceedings on the welfare of children. As the Full Court pointed out in Miller & Harrington (2008) FLC 93-383, the provisions of 69ZN of the Act, which prescribes “principles for conducting child-related proceedings”, apply to a hearing in which Rice and Asplund is invoked. Subsection 69ZN(3) provides (our emphasis):

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.

68. There are, of course, cases where it is necessary, in the interests of the child, for a court to revisit “final orders”, whether made by consent or following a defended hearing. As Evatt CJ said in Zabaneh and Zabaneh [1986] FamCA 18; (1986) FLC 91-766 at 75,587 (Fogarty and Renaud JJ agreeing):

The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account.

69. As the Federal Magistrate noted, the Rice and Asplund authorities were reviewed in SPS and PLS, where Warnick J recognised that the purposes that can be served by the “rule” differ depending upon the stage of the proceedings at which it is sought to be applied. For example, in the event it is addressed as a preliminary matter it is clearly more effective in discouraging “endless litigation” than if it is applied at the conclusion of the hearing.
70. Warnick J observed (at 87,451) that “at whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the ‘best interests principle’”. His Honour also recognised that “the application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order”. We respectfully adopt those observations, with the latter being of particular importance in the determination of this appeal.
71. Warnick J’s views were also endorsed by the Full Court in Marsden v Winch (supra at 19 [47]), where Bryant CJ, Finn and Cronin JJ went on to say (footnotes omitted):
    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.
    49. However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.
    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.

72. Their Honours continued:
    55. Given that the application of the rule should always remain a manifestation of the best interests principle, we do not think that that principle can be given its full weight by restricting the application of the rule in Rice to two choices, either application of the rule by taking the applicant’s case at its highest, or a full hearing.
    56. In our view, depending upon the facts of each case, a broader range of processes should always be considered. This is because the decision is one which must be made in the best interests of the child but may also be because of the need to provide procedural fairness in the manner in which the court determines how the rule will be applied. ...
73. The Full Court then described a two step process to be followed when the Rice and Asplund “rule” is invoked. Their Honours said:

58. ...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.

Discussion

74. It is apparent that the Federal Magistrate was well aware that application of the Rice and Asplund “rule” involves the two step process to which we have referred. This can be seen from the opening paragraphs of the concluding part of her Honour’s reasons. The relevant passage is set out below:
    48. In SPS v PLS, Warnick J warned against focussing too closely on the character of particular events relied upon to establish a change in circumstances. He said the following at page 311:

The essential question, however, is as to the sufficiency of new events to provoke a new enquiry. The answer to this question involves putting the events in context in the broader circumstances pertaining to the arrangements for a child and measuring the significance of the events against the significance of the steps that might follow in light of them.

49. This, in my view, is the critical issue. There is no doubt that there have been some significant changes in [the child G’s] circumstances. However, the ultimate question I must determine remains whether it is in [the child’s] best interests for the litigation to run. This requires an assessment of the potential costs and benefits to [the child] from a new trial about her parenting arrangements and whether, in light of that assessment, such a trial is justified.
75. As we have recorded, the Federal Magistrate had earlier set out what she had found to be “significant changes” in circumstances. She accepted that the child’s “physical, emotional and intellectual needs will certainly have changed over that period”. She also accepted that there was now a report concerning the child’s views. Her Honour also acknowledged that the child’s views were “likely to carry substantial weight and are a very relevant consideration...”.
76. It is true the Federal Magistrate did not make any finding concerning the “second change in circumstances” relied upon, namely the change in the child’s health. She merely recorded the positions of each party on this issue. However, it is clear she considered the other changes were sufficient to satisfy the first step of the process mentioned in Marsden v Winch. Thus, her ultimate decision to dismiss the father’s application can be seen as squarely resting on her consideration of the second step, which her Honour described as involving an “assessment of the potential costs and benefits to [the child] from a new trial about her parenting arrangements”.
77. The Federal Magistrate was right to embark on that assessment, since it was not only permitted but required by authority binding upon her. We therefore do not accept the submissions advanced on behalf of the father that “once a change in circumstances is established, applications are to be determined in accordance with the legislative pathway set out in Goode and Goode”. Nor do we accept the associated submission that the Federal Magistrate was obliged to undertake an assessment of all of the s 60CC factors before arriving at a decision. We respectfully adopt the view expressed by Collier J in King and Finneran [2001] FamCA 344; (2001) FLC 93-079 at 88,366 [41] that to require a court to undertake such an assessment would defeat the entire purpose of the “rule” in Rice and Asplund.
78. We will shortly turn to consider specific complaints advanced by the father about matters it is suggested the Federal Magistrate should have considered or done in dealing with the application for the proceedings to be dismissed. However, before discussing them, we will deal with the complaint about the Federal Magistrate deciding the Rice and Asplund issue at the stage of the proceedings she did.

Timing of the decision

79. Counsel for the father seized on the acceptance by the Federal Magistrate that the “preliminary issue” should have been determined when the matter initially came before her in December 2009 or in February 2010. It was submitted that by “not allowing the matter to proceed in the normal manner on 1 December 2010, the Federal Magistrate erred as the threshold issue was determined after evidence had come into existence but was not tested”.
80. In his oral submissions before us, counsel for the father properly acknowledged that the Rice and Asplund issue can be “run at any time”, but he submitted that in the present case the “horse had bolted” because the case had been “opened up” (by the filing of affidavits and the provision of the family report) and there had been a number of court events.
81. It is true the Federal Magistrate agreed with the proposition put by counsel for the father that the Rice and Asplund issue should have been determined at an earlier stage of the proceedings. However, her Honour also pointed out that this had not happened because a family report had been ordered after the father had “pressed” for this to occur. It is a matter of discretion at which stage of the proceedings a court considers the Rice and Asplund issue: Bennett and Bennett (1991) FLC 92-191 at 78,262. Once the family report had failed to bring about a negotiated resolution, we consider it was open to the Federal Magistrate to entertain the application for the proceedings to be dismissed.

Changes relating to the child’s health

82. It was submitted by the father that “prior to acknowledging that there was significant changes in [the child G’s] circumstances, the Federal Magistrate should have made the appropriate enquiries to confirm the changes in [the child’s] circumstances, such as her health and the evidence pertaining to [the child’s] condition which was available” to the judicial officer who made the final orders in 2004.
83. It was certainly not encumbent upon the Federal Magistrate to make any “enquiries” beyond the material she was given by the parties. In any event, it was unnecessary for her Honour to look for more changes in circumstances when she had already found there had been sufficient to make it appropriate to move on to consider the impact of the litigation on the child.
84. The arguments made by counsel for the father also overlook the position he adopted in the proceedings below. Counsel readily agreed with the Federal Magistrate when she said it was her “preference [that] we just do it in submissions”, rather than having the parties give evidence. (Transcript, 1 December 2010, page 9). Counsel for the father, properly in our view, went on to say to the Federal Magistrate “what worries me is once we start getting into evidence, well, it might as well – quite frankly, your Honour, there goes...a Rice & Asplund argument. It defeats the whole purpose of the exercise”. (Transcript, 1 December 2010, page 10).

Investigations to confirm the child’s views

85. We also reject the proposition that the Federal Magistrate “should have made the necessary investigations in order to confirm [the child G’s] view, which was the purpose of obtaining the family report”.
86. It is not entirely clear to us what those “necessary investigations” might have involved, but the balance of the submissions suggest it is contended the Federal Magistrate should have required the Family Consultant to be cross-examined. It was argued this “was particularly important in this case given the difficulties expressed by the family consultant when he referred to his notes prior to writing the report”.
87. This proposition can be disposed of by referring to the election that counsel for the father made at the hearing not to cross-examine the Family Consultant, as appears from the following passage (transcript, 1 December 2010, page 17):

HER HONOUR: Given my comments that I’ve made about [the Family Consultant’s] report do you want him to be available today? I would urge not. I don’t think it’s necessary. I think I should make the decision based on the evidence as it is and taking into account the criticisms made by either of you about the state of it.

[THE MOTHER]: Your Honour, I don’t think there’s any point calling him in, because every time you talk to him he gives you a different story.

HER HONOUR: All right.

[THE MOTHER]: He keeps saying that his notes are wrong and I think he’s totally unreliable.

HER HONOUR: All right. You don’t require him. And you don’t - - -

[COUNSEL FOR THE FATHER]: I don’t think he should be called, your Honour.

88. We accept, of course, that the election made by counsel for the father not to cross-examine was based on the assurance given by her Honour about the way the evidence of the Family Consultant would be treated. We will later discuss how the Federal Magistrate dealt with the evidence of the Family Consultant.

Insufficient evidence to allow finding to be made

89. Counsel for the father submitted there was insufficient evidence to allow the Federal Magistrate to find that it was not in the child’s best interests for the matter to be re-opened. It was further submitted that by “considering the potential costs and benefits to [the child G] arising out of litigation the Federal Magistrate failed to place appropriate weight on all the other available evidence pertaining to [the child’s] best interests”.
90. Again we are unable to accept these submissions. The Federal Magistrate had available the affidavits of the parties, albeit appreciating they were untested. She also had the report of the Family Consultant, which her Honour also accepted was untested. Whilst there were no doubt factual matters in issue, this evidence was sufficient to allow her Honour to make what we understand to be undisputed findings dealing with the “primary considerations” in s 60CC(2).
91. First, her Honour was able to find there was no doubt the child would benefit from having a meaningful relationship with both parents, and importantly found the child already had such a relationship. She further found there was no need to protect the child from harm in the care of either parent. Accordingly the only other matters on which evidence might be needed related to the “additional considerations” in s 60CC(3).
92. Her Honour accepted that if the trial was permitted to proceed it was likely evidence would be called on a range of s 60CC(3) matters. She went further by mentioning the particular areas where she expected evidence would be called, but she noted that, “judging by the material I have seen it is likely that each party will accuse the other of a poor attitude and inappropriate behaviour”. However, she also observed there was already evidence about “two important matters”, namely the child’s relationship with both parents and with “other relevant people, including siblings”, as well as the views of the child. Her Honour recorded that it seemed clear on all the evidence that the child had a “very good relationship with both parents and her older siblings”. It should also be noted that there was no suggestion by either parent that the other parent was not properly caring for the child.
93. In the context of a dispute that was confined to whether the child would spend two (or possibly one) extra nights a fortnight during school terms with the father, we consider her Honour had sufficient information available to her to make the decision she did.

Weight placed on the family report

94. In his oral submissions, counsel for the father said the thrust of his case related to the Federal Magistrate having relied on the untested family report. It was submitted that, having found the case to be “finely balanced”, and that “prima facie” there were changed circumstances, the Federal Magistrate then erred in placing any weight at all on the report.
95. In support of this proposition, counsel for the father drew our attention to a remark made by the Federal Magistrate during the course of his submissions where her Honour said to counsel (transcript, 1 December 2010, page 32 – 33):

Well hardly though, because the prima facie, it’s such a significant change of circumstances from a very young child to a high school student, that a report wasn’t even ordered in the first case because her views at that age would have had minimal, at best, weight and at her age now her views would have significant weight. So without the report, in a way, the argument for re-opening is stronger. ...

96. Counsel for the father suggested that the corollary of the latter proposition was that because a family report had, in fact, been prepared the father’s case was weaker, and that it must have been the family report which had influenced the Federal Magistrate to move from that “prima facie” position. Particular emphasis was placed by counsel for the father on paragraph 59 of the reasons where her Honour said that the outcome might have been different had, inter alia, there been “no independent evidence at all about [the child’s] views”.
97. When challenged on the propriety of taking into account remarks that fell from the bench during submissions, it was argued by counsel for the father that it would be inappropriate to ignore what had been said by the Federal Magistrate in the course of argument because the views she expressed at that time underpinned the way she reached her decision.
98. In order to put her Honour’s remarks into context, it is necessary to set out in full the concluding part of her reasons, which explain the basis upon which the decision was reached (our emphasis):

56. I have already set out the evidence about [the child G’s] views contained in [the Family Consultant’s] report. I have also noted that that evidence is untested. In its untested state the evidence of her views seems clear and likely to be weighty, especially in light of [the child’s] apparent maturity and intellect. However it is possible that, through cross examination and the tendering of other evidence, the effect of that evidence is changed or its weight diminished. It may be the Court finds the child’s views have been inappropriately influenced by the mother. Even if that occurred, the question remains whether the potential benefits to the child from conducting that enquiry justify the potential adverse consequences.

57. Under the current arrangements the child spends 5 nights in every 14 with her father. If the litigation is allowed to continue and the father is 100 per cent successful in his application, there will be an increase of 2 nights per fortnight in the time [the child] spends with him. However, that time would be organised into one-week blocks, which is a significant change. The father’s alternative proposal would involve an increase of one night per fortnight. It may be that, at the end of the litigation, there is no change to the arrangements at all.
58. I said to the parties during the proceedings and now reiterate that the decision in this case is very finely balanced. The arguments presented by the father are strong and persuasive. At the end of the day, however, I am not satisfied that the potential benefits to [the child] warrant further litigation of the parenting arrangements. [The child] will be 12 next month. In a few short years she will be old enough to effectively “vote with her feet” in the event she wished to change the time she spends with each parent.
59. If the parties had only ever been involved in the original litigation in 2003/2004 and not had further proceedings or if there was no independent evidence at all about [the child’s] views the outcome might have been different. The potential adverse effects of further litigation might have been justified.
60. The fact that the parties have been litigating for so long is part of the factual matrix in this case and which I take into account. Given that history, I am not confident that, even if a fully litigated trial was conducted next year, it would end proceedings between the parties.
61. The mother has repeatedly asked for the litigation to be brought to an end. I am satisfied that it is in [the child’s] best interest for that to occur.
99. In our view, the Federal Magistrate’s remarks in paragraph 59 have to be considered in light of what she had said in paragraph 56, where she clearly accepted that the effect of the evidence of the child’s views might be “changed or its weight diminished” in the event the matter proceeded to a full hearing. She also allowed for the possibility that it would be found the child’s views had been “inappropriately influenced by the mother”. But as her Honour said, even if these things transpired, the question would still remain “whether the potential benefits to the child from conducting that enquiry justify the potential adverse consequences” and plainly the answer to that question became the basis of her decision.
100. We were not taken to any part of the materials which contained a suggestion on the part of the father that the child’s then views were misquoted in the first interview, where she appeared to express some support for a precisely equal shared care arrangement. It would seem the father took exception to the second set of interviews where the child made comments supportive of the status quo. In this context, it is noteworthy that the mother also had “issues” with the Family Consultant’s report, noting that “every time you talk to him he gives you a different story”.
101. Whilst both parties may therefore be seen to have concerns about the Family Consultant’s report, we are not persuaded that her Honour gave it any more weight than was appropriate. Although her Honour did not explain why its existence assisted her in determining that the father’s application should be dismissed, it can be safely inferred that her Honour recognised the legislation places some emphasis on ascertaining the views of a mature child. The child’s views had been sought and, as was not apparently in doubt, the report confirmed she had a very good relationship with both her parents.
102. Whilst there was some ambivalence in what the child had said to the Family Consultant, she had said enough for her Honour to proceed in the knowledge that her views lay somewhere between being content with the status quo and being prepared to move to an equal shared care regime. Without such an independent report the Federal Magistrate would have been reliant entirely on the parents’ own assessments of the strength of the child’s views. It is only in this context that we consider her Honour found some comfort in having the report available when dismissing the father’s application.
103. In concluding our discussion of the family report, we should record we find no error in the Federal Magistrate not giving the parties the opportunity to pursue the recommendation made by the Family Consultant for a change in the existing arrangements. As her Honour noted, this proposed new regime did not increase the time the father had with the child. We were not taken to any material to show either party supported the Family Consultant’s proposal, and in any event there was nothing stopping them from agreeing to it if they considered it was in their daughter’s best interests.

Conclusion

104. Whilst we agree with the Federal Magistrate that the matter was “very finely balanced”, we consider her decision was a sound exercise of her discretion.
105. Her Honour adopted a common sense approach to a case in which the only change in the child’s life proposed by the father would be for her to spend two, or possibly just one, more nights a fortnight with him during school terms. The importance (or lack thereof) to the child of this proposed change, in circumstances where she already enjoyed a very good relationship with her father, stood to be considered in light of the fact that “in a few short years” she would be old enough to “vote with her feet”.
106. Any potential benefit to the child associated with spending additional time with one loved parent (and we might note a correspondingly shorter time with another loved parent and siblings) was, in her Honour’s view, outweighed by the prejudice associated with yet more litigation. As we have found no appellable error in this approach, the appeal will be dismissed.

Costs

107. The mother sought costs in the event the appeal was dismissed.
108. The Federal Magistrate dismissed the mother’s application for the costs of the proceedings in the Federal Magistrates Court. However there are circumstances which would justify costs being ordered for the appeal. The appeal was entirely unsuccessful. The husband is a barrister with a “moderately successful practice”. The mother is an economist, earning about $80,000 per annum. We consider the father should pay the mother’s costs.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Thackray and Strickland JJ) delivered on 25 January 2012.

Associate:

Date: 25 January 2012