Rice v Asplunde upheld

Rice v Asplunde upheld

Wemple & Dautry

Application to vary the parenting orders

106. Final orders were made by Judge Neville on 18^th December 2014 following a lengthy trial where both parties were represented by Counsel. On 14^th January 2015 the mother lodged an appeal against those orders. On 23^rd December 2015 following a fully contested appeal, the Full Court of the Family Court dismissed the appeal against the orders of Judge Neville and made an order that the appellant pay the respondent’s costs.
107. On 27^th July 2016 the mother filed an application to vary the parenting orders of 18^th December 2014 such that “the orders for the care (of X) are made in reverse or X is permitted to stay (with her mother) on Thursday and Sunday nights.” This application was brought 7 months after the Full Court dismissed her appeal.
108. In Rice v Asplund (1979) FLC 90 – 725 Evatt CJ said at 78,906:-
     “The principles which 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.”
109. In King v Finneran (2001) FLC 93 – 079 the Full Court said it was open for a Court to consider as a threshold issue whether there is a significant change in circumstances to permit re-litigation of a parenting matter.
110. Justice Warnick in SPS and PLS (2008) FLC 93 -363 at [81] said as follows:-
     “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 competence with form and procedure but rather because assuming the evidence of the applicant is accepted there is insufficient change of circumstance shown to justify embarking on a hearing.”
111. The “rule” in Rice and Asplund (supra) requires an applicant to establish a change in circumstances before a final parenting order can be varied and/or parenting arrangements (whether pursuant to Court orders or otherwise) can be re-evaluated.
112. In Newling v Newling; Mole (Applicant) (1987) FLC 91 – 856 the Full Court (Barblett, Fogarty and Nygh JJ) at paragraph 19 indicated:-
     “Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children it is …not appropriate to speak of cause of action estoppel. What the rule really illustrates is that it is generally speaking not in the interests of the child to have repeated applications concerning its custody and access before the Court. There must, in other words, be an end to litigation.”
113. In Zabaneh (1986) FLC 91 – 766 the Court said:-
     “Fresh applications for custody or access should not be entertained unless there exists a substantial change in circumstances.”
114. It is open for the Court to consider the reasons for judgment in an earlier case on the issue whether there are sufficient circumstances to justify the reopening of the issue of whom a child should live with and/or whether there should be any variation to final orders. (see Hayman & Hayman (1976) FLC 90 – 140 at pp 75, 680 and 75,691)
115. The mother filed a Notice of Risk on 27th July 2016. She asserted that X is subjected to psychological and emotional abuse in her father’s care. She made various allegations which pre-dated both the final parenting orders and the Full Court’s consideration of the matter on appeal.
116. Since 2012 there have been 16 reports received by the Office of Children Youth and Family Support the most recent being 28^th June 2016. The last several reports complain about emotional abuse of X by the father over the telephone. The Director General has not deemed it necessary to intervene. These matters are the subject of the contravention applications filed by the mother.
117. The complaints contained in the mother’s affidavits centre around her perceived dissatisfaction with telephone communication and the impact she said this was having on X. In addition she complained that the father was sending her harassing correspondence. She made a number of generalised complaints about the father’s ability to care for X with respect to X’s clothing, hair and fingernails. The correspondence annexed to the mother’s affidavit which she alleges constitutes harassment by the father does not support her contention.
118. For his part the father raised concerns about the impact that many of the mother’s conversations by phone were having upon X, incidents which he said the child found very distressing.
119. The Court notes the careful analysis of his Honour Judge Neville’s reasoning in Wemple & Dautry (No 2) [2014] FCCA 2847 regarding the competing parenting applications in particular the mother’s application that X live with her which is repeated in her application for the “orders to be reversed.” He determined at [268] and [269] of his judgment:-
     [268] “…there is some risk to the father’s relationship with X while ever she remains living with the mother according to the father’s evidence, that of Ms K and that given by the Family Consultant. I formed the same view very clearly ….(the mother) lacks significant insight into the consequences of her conduct particular with respect to proper, basic prudential parenting.

[269] I have no confidence at all that the mother would promote X’s relationship with the father. …I consider that while ever X attends her current school, the mother will endeavour to disrupt her schooling with a view to frustrating the father until ultimately he will succumb out of fatigue or exasperation of the contest to the mother’s wishes. …I have no confidence at all that the mother will desist from making outrageous allegations against the father ….which will continue to require the (employer omitted) to expend further resources on them…the mother has continued this appalling cycle of allegation, complaint and investigation.”

120. At [271] Judge Neville opined “I share the concern (of the Independent Children’s Lawyer) about the mother’s ability to provide for the child’s psychological needs.”
121. There is nothing in the mother’s material relied on which supports a material change in circumstances since the orders were made on 18^th December 2014.
122. The Full Court of the Family Court in December 2015 dismissed the mother’s appeal against the orders of 18^th December 2014 and noted at [62] that:-
     “…there were a range of concerns regarding the mother, apart from the issue of her lack of credibility, which supported the making of orders which vested sole parental responsibility in the father and required that the child should live with him.”
123. The mother has failed to establish that there has been a material change in the child’s circumstances which would warrant re-opening parenting proceedings. The mother’s parenting application is dismissed.