Significant change of circumstances

Significant change of circumstances – Rice v Asplunde

The following is annotated. For full case: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2016/462.html?stem=0&synonyms=0&query=family%20law%20act

Sansom & Middleton [2016] FCCA 462 (17 May 2016)

Catchwords:
FAMILY LAW – Rice v Asplund principle – whether there has been a change in circumstance or of sufficient materiality to engage a Family Report to assess and report on a 12 year old child’s views as to his parenting and living arrangements.

1. The father is the applicant and seeks a final parenting order where the relevant child, X (“X”), born (omitted) 2003 (aged 12 years) lives on a “week-about” basis between the parents. Importantly, however, for the matters now before me, the father seeks an interim order that there be a Family Report prepared by Mr G, who is a social worker and one who has previously provided at least two family reports in respect of X.
2. The application is opposed on the basis that the matter in its substance should be disposed of pursuant to what is colloquially known as the “principle in Rice & Asplund.”^[1]
3. The father says that X is expressing a desire to spend more time with him and, in particular, live on a week-about basis between the parents. The father, in his affidavit of 20 November 2015, at [9-10] deposes:

The issue which necessitates this Application is X’s passionately expressed desire to live with me and the Applicant on an alternate week basis.
X has consistently expressed this wish to me and other members of my family over the last twelve months to the point of becoming anxious and frustrated.

9. The father further relies on an affidavit of his partner, Ms M sworn 25 February 2016. She deposes to spending “considerable time” with X, including nights at the applicant’s home when X is present. At [7] she deposed that:

X has told me on countless occasions that he wants to spend equal time with his parents. He is a very intelligent and mature boy and believes the current arrangement gives him only a limited time with his father. He has stated that he considers the arrangement “unfair” for himself and also for his father.

10. In summary, therefore, the applicant seeks a further report from Mr G on the basis of that reporter having as previous involvement in the matter and in arguing that X, at 12 years of age, is now able to maturely and rationally articulate his views as to his living arrangements between his parents and has indeed been consistently expressing those views.
11. The respondent mother opposes the application proceeding further and including the obtaining of a report from Mr G. She concedes that X has made statements consistent with wanting to spend more time with his father but says that he has done so coincidentally with returning from extended visits with the father. The implication to this argument is that the child is manipulated either directly or subliminally in his views.
12. The mother argues that there has been no change of circumstances or any of such materiality that the threshold imposed by Rice & Asplund has been crossed. She acknowledges and concedes that prior to the orders of September 2013 X was then expressing a wish to spend more time with his father and that then, like now, the father was seeking an order for equal time between the parents.
13. The mother says that the parents entered into consent orders in September 2013, when fully informed and understanding of X’s stated wishes and, in fact, in anticipation of the obvious fact of X becoming older and more mature, specifically and by consent, included in those orders a provision that the parties would again address X’s living arrangements and with consideration as to his own views in 2018. She relies upon, as does the father, Mr G’s report from interviews in August 2013 and specifically at [53] where the reporter says:

If orders are made at the next hearing, Ms Middleton is open to this arrangement being reviewed and, subject to there being no reasons to the contrary, X’s time with Mr Sansom could be extended (as was the case with (omitted) when he reached a similar age) once he commences his secondary education in two years time. Perhaps this needs to be included in any orders made so as to give Mr Sansom some optimism that any orders made at the next hearing can be varied and his time with X increased.

14. In his recommendation at [59] of that report, Mr G includes:

…orders be made for the above arrangements to be reviewed once X commences his secondary education.

15. In summary, therefore, the father relies on Mr G’s observations from 2013 that it might be prudent to “review” X’s views and hence, his living arrangements once he commences secondary school. That, of course, is this year.
16. The mother, however, argues that the parties themselves, fully informed and armed with Mr G’s report, agreed themselves that the review period would happen but not until 2018. She says, therefore, there is no significant change in circumstance from that which existed in 2013 when, firstly, X was expressing a wish to spend more time with his father and, secondly, the parties had enjoyed the benefit of Mr G’s observations and recommendations.

17. The principle in “Rice & Asplund” is well and long established. Its rationale is a simple and understandable one, being to avoid for children the stresses, either directly or vicariously, of their parents being engaged in regular litigation regarding those children. Accordingly, the Courts over the years have acknowledged that “final” orders in respect of children can only be so within the context of an understanding that the vagaries of life will impact on the circumstances of children or their parents and may necessitate further litigation in respect of the children. The Courts have been careful, however, to include important adjectives to be read with the phrase “change of circumstances” and such as “material”, “substantial” and “significant”.

Consideration

18. There is some merit and appeal in the mother’s argument. Certainly, it is clear that the parties themselves contemplated a review of X’s living and parenting arrangements and they themselves decided to do so in 2018. This indicates a consideration of the circumstances existing at the time of the orders including the information available from Mr G’s report. Further, it is clear that the orders sought by the father in 2013 and in his current application are in similar terms and hence do not of themselves ground any change in circumstance. Similarly, Mr G’s report confirms that X was in 2013 making statements that he preferred to spend more time with his father and yet the parents reached consent orders contrary to those stated views. The father asserts that X is again making similar statements of his views and preferences.
19. Superficially, therefore, it is difficult to see any change in circumstance, or certainly of any materiality, from the consent orders agreed in 2013. Nevertheless, and on closer reflection, to take such a clinical view of the circumstances and context is to neglect the very nature of the fluidity of children’s views and their various levels of maturity and rationality. Section 60CC(3) of the  Family Law Act  and the authorities make it clear that children’s views are to be taken into account in respect of parenting orders and the child’s ultimate best interests, but to be done so with reference to factors such as voluntariness, maturity and rationality. The period since the making of the orders in 2013 is not an insignificant one given the development of a child. Indeed, this is the change in circumstance asserted by the father. X was 10 years of age when his parents reached consent orders in 2013. He will soon turn 13 years old. He has transited from primary to high school. It is entirely conceivable that his levels of understanding and maturity have changed or developed over such a period of time. Fundamentally this is the material change in circumstance asserted by the father.
20. That being the case and given the statutory requirements under section 60CC(3) of the Act, I am of the view that the threshold in Rice & Asplund is crossed and that X’s views should be investigated in the usual way being from a family report. It is entirely proper in all of the circumstances that Mr G be the author of that report. I will order accordingly.
21. The results of Mr G’s forensic exercise are, of course, only speculative at this stage and it is entirely possible that the father’s assertion will not receive support. If this be the case then I see no reason why a further application under the Rice v Asplund principle should not be able to be brought and considered.