Middleton, Sarah --- "Time for a Change? Shared Parenting, Variation of Orders and the Rule in Rice and Asplund" [2006] FedLawRw 15; (2006) 34(3) Federal Law Review 399
[*] (Dr) Sarah Middleton - BA/LLB (Hons), PhD, Law Lecturer, Monash University. The author would like to thank Richard Ingleby and Adiva Sifris for their insightful thoughts and comments.
[1] FLA ss 60B(1)(a), 60CC(2)(a), 65DAA.
[2] This includes applications filed prior to the commencement of the legislation. See SPA sch 1, pt 2.
[3] [1978] FamCA 84; (1978) 6 Fam LR 570.
[4] Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Report on Provisions of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (24 March 2006) 44.
[5] Attorney-General's Department, Government Response to Recommendations of the Senate Legal and Constitutional Legislation Committee Report on the Family Law Amendment (Shared Parental Responsibility) Bill 2005, 11 May 2006, 7.
[6] FLA s 60B(1)(a).
[7] Only incidental reference is made to the rule. See Richard Chisholm, '"The Paramount Consideration": Children's Interests in Family Law' (2002) 16 Australian Journal of Family Law 87; Peter McManus, 'Guidelines in Family Law: Rules by Another Name? (2001) 15 Australian Journal of Family Law 51.
[8] There are 22 reported cases that have considered, refined and applied the threshold test set down by the Full Court.
[9] Since 2000, parties have also been able to file for orders in the Federal Magistrates Court which shares jurisdiction with the Family Court in respect of matters arising under Part VII of the FLA (s 69H).
[10] Although the SPA makes redundant the terms 'residence' and 'contact', for the purposes of this paper these terms will be used interchangeably with the new terminology of 'lives with' and 'spends time with'. The reason for this is that all of the case law discussed in this article is pre-SPA and thus utilises the former terminology. Further to this, in the discussion of cases decided prior to 1996, the term 'custody' may be used instead of 'residence' and 'access' instead of 'contact'.
[11] FLA s 64B(1).
[12] This is done through the filing of an Application for Consent Orders. The orders are typically approved by a Registrar.
[13] FLA s 65D(1).
[14] FLA s 60CA.
[15] Section 60CC. These factors were formerly known as the 's 68F(2) factors'.
[16] Section 65D(2).
[17] See C and F [2005] FamCA 110 (Unreported, Finn J, 28 February 2005). Where the threshold test is met, the Court then determines the case on its merits according to the principle set down in Cowling and Cowling [1998] FamCA 19; (1998) 22 Fam LR 776; namely, if children are in a settled environment, interim orders should not disturb the status quo unless the welfare of the child is endangered. See Tom Altobelli, 'Recent Developments in Interim Residence Applications: Back to the Future?' (2000) 14 Australian Journal of Family Law 36.
[18] Rice and Asplund [1978] FamCA 84; (1978) 6 Fam LR 570, 572. Most reported cases involve an application to vary previous orders made by consent. This is to be expected given that there are more orders made by consent than orders imposed by the Court following a defended hearing. See Family Court of Australia, Annual Report 2004–2005 (2005) ch 3.
[19] Hayman and Hayman (1976) FLC 90–140, 75679.
[20] Rice and Asplund [1978] FamCA 84; (1978) 6 Fam LR 570, 572.
[21] (1976) FLC 90–140.
[22] [1978] FamCA 84; (1978) 6 Fam LR 570, 572.
[23] Ibid 571.
[24] Ibid 572.
[25] For example orders relating to the time that a child spends with a parent.
[26] For example, the issues involved in considering an application for reinstatement of time with a child (where such time has been suspended), 'relate much more directly to the children and their needs, their own attitudes and wishes'. Moreover, the applicant in such a case 'may have no direct evidence to put before the Court relating to the children and their needs, simply because he has had no contact with them over the years': Zabaneh and Zabaneh [1986] FamCA 18; (1986) 11 Fam LR 167, 172 (Evatt CJ). See also Chojecki and Chojecki, [1995] Fam CA (Unreported, Lindenmayer, Finn and Joske JJ, 4 October 1995).
[27] [1986] FamCA 23; (1986) 11 Fam LR 293.
[28] Ibid 297; See also McEnearney and McEnearney (1980) FLC 90–866, 75499 (Nygh J).
[29] In this way the Family Court has regard to the best interests of the child in what has been described as a 'weak' sense; see Chisholm, above n 7
.
[30] In this sense the Family Court has regard to the best interests of the child in a 'strong' sense; ibid.
[31] The applicant need only show a change of circumstances that warrants a reopening of the parenting issue, rather than a change that would warrant alteration of the original order. Accordingly, there is no onus on the applicant to show that a positive advantage would result from a variation of the orders. Similarly, there is no onus on the respondent to show that a change would be detrimental to the children (Burton and Burton (1978) 4 Fam LR 783, 786).
[32] See, eg, Langham and Langham [1981] FamCA 16; (1981) 6 Fam LR 862. In these cases 'common law rules of pleading and of adversary litigation, and specifically in relation to the introduction of fresh evidence, are modified to take account of the parental jurisdiction of the Court in disputes involving a child's welfare' (Geoff Monahan and Lisa Young, Family Law in Australia, 6th ed, 2006) 315.
[33] See FLA ss 60CC(2)(b), (3)(j); See also JG and BG (1994) 18 Fam LR 255.
[34] Langham and Langham [1981] FamCA 16; (1981) 6 Fam LR 862, 864–5. This case provides the only reported case law example of the threshold test being satisfied by non-disclosure. The non-disclosure in question related to inaccuracies in the consent orders concerning existing custody rights and claims.
[35] King and Finneran (2001) FLC 93–079, 88369. In this case the Court rejected the husband's argument that if the individual changes he alleged were not sufficient in isolation, collectively they sufficed.
[36] Newling and Mole [1987] FamCA 21; (1987) 11 Fam LR 974, 976.
[37] McEnearney and McEnearney (1980) FLC 90–866, 75499.
[38] Freeman and Freeman [1986] FamCA 23; (1986) 11 Fam LR 293, 297.
[39] Houston and Sedorkin (1979) FLC 90–699, 78727–28.
[40] In Rice and Asplund [1978] FamCA 84; (1978) 6 Fam LR 570, Evatt CJ described it as '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' (572). Similarly in Freeman and Freeman [1986] FamCA 23; (1986) 11 Fam LR 293, the Court referred to the need for new facts 'which throw sufficient doubt on the desirability of continuing the custodial arrangements' (297).
[41] (2001) FLC 93–079, 88368. This statement of principles has since been endorsed by the Full Court in Bolitho and Cohen [2005] FamCA 458; (2005) 33 Fam LR 471.
[42] D and Y (1995) 18 Fam LR 662; King and Finneran (2001) FLC 93–079.
[43] In this scenario, the ordinary rules that apply to summary dismissal of claims (see Australian Building Industries Pty Ltd v Stramit Corporation Ltd [1997] FCA 1318; Lindon v Commonwealth (No 2) [1996] HCA 14; (1996) 136 ALR 251, 255–6; Re Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, 257–8) are modified: D and Y (1995) 18 Fam LR 662.
[44] D and Y (1995) 18 Fam LR 662. See D v L [2004] WASCA 116 (Unreported, Steytler, Heenan and Le Miere JJ, 20 April 2004) for an example of failure by the trial judge to afford procedural fairness in this context.
[45] Bennett and Bennett [1990] FamCA 148; (1991) 14 Fam LR 397. Approved by the later Full Court decision of D and Y (1995) 18 Fam LR 662.
[46] Section 1.3.
[47] Rice and Asplund [1978] FamCA 84; (1979) 6 Fam LR 570, 572.
[48] In some cases it may be appropriate, even necessary, for the judge to consider the trial transcript. See Hayman and Hayman (1976) 2 Fam LR 11,558.
[49] Rice and Asplund [1978] FamCA 84; (1979) 6 Fam LR 570, 572–3.
[50] Newling and Mole [1987] FamCA 21; (1987) 11 Fam LR 974.
[51] Delay of between one and two years can be a particular problem in cases involving children. See Australian Law Reform Commission, Submission to Australian National Audit Office Preliminary Study of the Administration of the Family Court of Australia and the Federal Magistrates Service (2003).
[52] Fryda and Johnson (1979) FLC 90–634, 78316. In this case, the father established a relevant change in circumstances only two months after making consent orders. After making the consent orders that gave custody of the child to the mother, she informed the father that she intended to marry a United States naval officer and to relocate with the children to Japan.
[53] Newling and Mole [1987] FamCA 21; (1987) 11 Fam LR 974, 977.
[54] See, eg, D and Y (1995) 18 Fam LR 662 where parenting orders had been made only two years earlier and following a nine day trial. The Full Court noted that in such circumstances 'a Judge would be extremely loath to reopen the issue of custody, except on strong grounds': at 672. See Fryda and Johnson (1979) FLC 90–634 for a case where the mother's proposed relocation two months after consent orders were made constituted such strong grounds.
[55] Newling and Mole [1987] FamCA 21; (1987) 11 Fam LR 974, 977 (Nygh J). On this basis, it was held that the trial judge did not err in coming to the conclusion that the child's 'development, age and maturity' justified reopening the issue of paternal contact some four years after the previous hearing. See also N and R (1991) 15 Fam LR 39.
[56] [1986] FamCA 18; (1986) 11 Fam LR 167.
[57] Ibid 172.
[58] See, eg, King and Finneran (2001) FLC 93–079 where the husband unsuccessfully sought a variation by which his contact would be increased by four hours each alternative week and one or perhaps two days coinciding with public holidays in each year. Collier J noted that 'if it were open to litigant to achieve a re-hearing because he were able to argue that the changes he sought were minor and accordingly the changes in circumstances or fresh matters that he needed to raise were accordingly reduced, this would produce ridiculous and nonsensical results': at 88369.
[59] Ibid.
[60] Ibid 88368. See also Freeman and Freeman [1986] FamCA 23; (1987) 11 Fam LR 293 where Strauss J rejected an application for variation on the basis that 'the alleged change in circumstances were … no more than the kind of changes that often occur in the lives of people of the ages of these parties': at 297.
[61] [1978] FamCA 84; (1979) 6 Fam LR 570.
[62] Ibid 573.
[63] Ibid. See also Radford and Alpe [1985] FamCA 25; (1985) 10 Fam LR 135, 143 where the mother was able to show a sufficient change of circumstances enabling her to bring an application for permanent relocation to the United States with the children of the marriage, notwithstanding that the possibility that she and her new husband might want to stay permanently in the United States had been contemplated when consent orders were made.
[64] See King and Finneran (2001) FLC 93–079, 78262 where Collier J stated: 'To apply the test in Rice v Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings.'
[65] [1990] FamCA 148; (1991) 14 Fam LR 397.
[66] Ibid 409. A good example is provided by the case of WP v WDJ [2003] FMCAfam 597 (Unreported, Scarlett FM, 5 December 2003) where the father sought a residence order, conditional upon succeeding in his claim to change the child's school. The mother sought to have the father's application for residence summarily dismissed. Scarlett FM, however, found that Rice and Asplund could not be dealt with as a preliminary issue because any change in the child's school would constitute a 'change' for the purposes of Rice and Asplund, and the schooling application was yet to be determined.
[67] [2005] FamCA 110 (Unreported, Finn J, 28 February 2005).
[68] Ibid [67]. The husband's appeal was accordingly dismissed. Another example is provided by ODJ and OSY [2003] FMCAfam 415 (Unreported, Scarlett FM, 3 September 2003).
[69] [1990] FamCA 148; (1991) 14 Fam LR 397.
[70] Ibid 409. This could occur, eg, where a party seeking a variation raises the issue of ongoing family violence between the parents. Although the history of the parties may involve the same pattern of behaviour, thus raising the objection that ongoing incidences of family violence were foreseeable and do not constitute new or changed circumstances, nonetheless it would be, in the words of the Full Court, 'unthinkable' that a technical application of the Rice and Asplund Rule could prevent the Court from making orders necessary to protect the child's best interests.
[71] Philip Ruddock, ‘Family Law Amendment Bill Passes Through Senate’ (Press Release 51/2006, 31 March 2006). The SPA amends the FLA to implement recommendations made by the House Standing Committee on Family and Community Affairs, Parliament of Australia, Every Picture Tells a Story: Report of the Inquiry into Child Custody Arrangements in the Event of Family Separation (2003); and by the House Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Report on the Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (2005).
[72] Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) 1.
[73] Ibid.
[75] Section 61DA(1). Under s 61DA(2), ‘[t]he presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person living with a parent of the child) has engaged in’ child abuse or family violence. The presumption may be rebutted where the Court is satisfied that equal shared parental responsibility would not be in the best interests of the child: s 61DA(4).
[76] Section 65DAA(1). See s 65DAA(5) on what the Court must consider when assessing whether equal time is 'reasonably practical'.
[77] Section 60CC(2)(a). The other primary consideration is the 'need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence': s 60CC(2)(b).
[78] Section 60B(1)(a). See also s 60B(2)(b).
[79] Section 65DAA(2).
[80] Section 65DAA(3).
[81] Robert van Krieken, 'The "Best Interests of the Child" and Parental Separation: on the "Civilising of Parents"' (2005) 68 Modern Law Review 25, 26.
[82] House Standing Committee on Family and Community Affairs, above n 71, xii.
[83] Jan Pryor and Brian Rodgers, Children in Changing Families: Life After Parental Separation (2001); Carol Smart, Bren Neale and Amanda Wade, The Changing Experience of Childhood: Families and Divorce (2001) 127; Paul Amato and Joan Gilbreth, 'Nonresident Fathers and Children's Wellbeing: A Meta-Analysis' (1999) 61 Journal of Marriage and the Family 557; Judith Wallerstein and Sandra Blakeslee, Second Chances: Men, Women, and Children a Decade after Divorce (1989) 302. See also Mavis MacLean and John Eekelaar, The Parental Obligation: A Study of Parenthood across Households (1997) 147.
[84] Bruce Smyth and Ilene Wolcott, 'Why Study Parent-Child Contact' in Bruce Smyth (ed), Parent-Child Contact and Post-Separation Parenting Arrangements (2004) 1, 7.
[85] Tom Altobelli, 'Editorial' (2006) 20 Australian Journal of Family Law 1, 1.
[86] Bruce Smyth, Catherine Caruana and Anna Ferro, 'Father-Child Contact after Separation: Profiling Five Different Patterns of Care' (2004) Family Matters 20, 21.
[87] Smyth and Wolcott, above n 84, 4. An even lower figure (less than 3 per cent) was found by the Australian Bureau of Statistics in Family Characteristics Survey 1997 (1998) Catalogue No 4442.0.
[88] Smyth and Wolcott, above n 84, 4.
[89] Patrick Parkinson and Bruce Smyth, 'When the Difference Is Night & Day: Insights from HILDA into Patterns of Parent–Child Contact after Separation' (Paper presented at the HILDA Conference 2003, Melbourne, 13 March 2003) 10, quoted in Smyth and Wolcott, above n 84, 6. Where contact is tenuous the perceptions of mothers and fathers differ markedly as to the cause. Mothers perceive fathers not to be interested in being involved with children and fathers believe that mothers have cut them out of their children's lives (Bruce Smyth, 'Summary' in Bruce Smyth (ed), Parent-Child Contact and Post-Separation Parenting Arrangements (2004) i, xii).
[90] House Standing Committee on Family and Community Affairs, above n 71, 22.
[91] Ibid 21.
[92] Bruce Smyth, Catherine Caruana and Anna Ferro, 'Fifty/Fifty Care' in Bruce Smyth (ed), Parent-Child Contact and Post-Separation Parenting Arrangements (2004) 17, 29; Bruce Smyth, Lixia Qu and Ruth Weston, 'The Demography of Parent-Child Contact' in Bruce Smyth (ed), Parent-Child Contact and Post-Separation Parenting Arrangements (2004) 113, 115; Patrick Parkinson, 'Child Custody Arrangements on Family Separation' (2004) 17 Australian Family Lawyer 30, 31–2; Bren Neale, Jennifer Flowerdew and Carol Smart, 'Drifting Towards Shared Residence?' (2004) 17(2) Australian Family Lawyer 12; Cate Banks, et al, 'Review of Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005' (2005) 19 Australian Journal of Family Law 79, 86–7. See also Foster and Foster [1997] FLC 90–281; Forck and Thomas [1993] FamCA 18; (1993) 16 Fam LR 516.
[93] Altobelli, above n 85, 2.
[94] Ibid.
[95] Smyth, Caruana and Ferro, above n 86, 27.
[96] Senate Legal and Constitutional Legislation Committee, above n 4
, 44.
[97] Ibid 46. It did accept that the establishment of FRCs may go some way to relieving the burden on the Court form this potential influx.
[98] Ibid 44 (quoting Mr Duggan, Committee Hansard, 3 March 2006, 46).
[99] Ibid 45.
[100] Attorney-General's Department, above n 5
, 7.
[101] Ibid.
[102] Parliament of Australia, Senate, Government Amendments, Family Law Amendment (Shared Parental Responsibility) Bill 2006, Amendment 5: Amendment to Schedule 1, Part 2 — new item 44 (Grounds for discharging or varying parenting orders).
[103] Notably, the explanatory memorandum to this amendment states that the inclusion of the 'note' immediately following item 44 'is to assist readers, particularly self-represented litigants, understand how new item 44 links to the common law.' (Supplementary Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth) 4).
[104] Item 44 is contained in sch 1, pt 2 of the SPA which deals with the application of amendments. It will not appear in the FLA itself.
[105] Senate Legal and Constitutional Legislation Committee, above n 4
, 45.
[106] See, eg, King and Finneran (2001) FLC 93–079, 88366 where Collier J rejected the husband's argument that it was not open to the Court to apply a threshold test to matters involving a child and that the former provisions (ss 65E, 68F and 60B) created a mandatory code to be followed by any court in reaching a determination. His Honour said: 'The legislation has not changed sufficiently to cause that which could be done before the 1995 amendments, that is, the application of a threshold test to be unavailable since the coming into effect of the 1995 amendments'. Following Collier J's line of argument, the new reforms could equally be regarded as insufficient to exclude the operation of the threshold test. Notably, the changes do not alter the framework of the Court's approach (pursuant to the former ss 65E, 68F and 60B) but merely the content (namely, the need to consider the possibility of equal time sharing between parents when assessing the child's best interests). See also L and L (1992) FLC 92–274.
[107] Section 2.3.
[108] Section 60B(1)(a).
[109] Senate Legal and Constitutional Legislation Committee, above n 4
(quoting Mr Duggan, Committee Hansard, 3 March 2006, 50).
[110] See Family Court of Australia, above n 18, 23.
[111] John Dewar and Stephen Parker, 'The Impact of the New Part VII Family Law Act 1975' (1999) 13 Australian Journal of Family Law 96, 115–6. See also Jennifer McIntosh and Lawrie Moloney, 'Child-Responsive Practices in Australian Family Law: Past Problems and Future Directions' (2004) 10 Journal of Family Studies 71.
[112] See, eg, John Wade, 'Forever Bargaining in the Shadow of the Law — Who Sells Solid Shadows? (Who Advises What, How and When?)' (1998) 12 Australian Journal of Family Law 256.
[113] Dewar and Parker, above n 111, 107. See also Rachael Field, 'Federal Family Law Reform in 2005: The Problems and Pitfalls for Women and Children of an Increased Emphasis on Post-separation Informal Dispute Resolution' (2005) 5 Queensland University of Technology Law Journal 28.
[114] This policy is expressly stated in the explanatory memorandum to Item 44 (see Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) 4).
[115] Equally, insofar as the new reforms seek to reduce litigation in the Family Court, as does the Rule, the conflict is reduced.
[116] See above, Section 1.1.
[117] See, eg, Gronow and Gronow [1979] HCA 63; (1979) 144 CLR 513. It was based on this exact reasoning that amendments made by the SPA to encourage equal and substantial time sharing fell short of creating a presumption to this effect.
[118] [1990] FamCA 148; (1991) 14 Fam LR 397.
[119] See above, text following n 70.
[120] See above, text accompanying n 70. Whether the interests of the child in spending more time with the applicant parent, per se (that is, absent other factors such as the child's changed views), could itself qualify as a change is doubtful: all that is new in this scenario is the Court's assessment of the best interests of the child in light of new legislative provisions. Equally, the wishes of a parent to spend more time with a child would not appear to be a relevant change: any applicant seeking more time has this motivation and, in many cases, the parent's desire for more time (or, indeed, an application seeking more time) may not be a new thing.
[121] [1981] FamCA 16; (1981) 6 Fam LR 862, 865.
[122] See Rice and Asplund [1978] FamCA 84; (1978) 6 Fam LR 570; Mitchell and Mitchell (1983) 9 Fam LR 267; Houston and Sedorkin (1979) FLC 90–699; King and Finneran (2001) FLC 93–079.
[123] See above, text accompanying n 94.
[124] See Smyth and Wolcott, above n 84.
[125] Catherine Caruana and Anna Ferro, 'Points of Convergence' in Bruce Smyth (ed), Parent-Child Contact and Post-Separation Parenting Arrangements (2004) 101, 104. In that study, many of the focus group participants were either poised to move into a different parenting arrangement at the time of interview of had experienced changes in the way they and their former partners cared for the children post-separation. This research runs counter to earlier research indicating that arrangements made soon after separation tend to remain in place indefinitely: Kate Funder, 'Exploring the access-maintenance nexus: Non-resident fathers' post-separation involvement with children' in Kate Funder, Margaret Harrison and Ruth Weston (eds) Settling Down: Pathways of Parents after Divorce (1993); Bruce Smyth, Grania Sheehan and Belinda Fehlberg, 'Patterns of Parenting After Divorce: A Pre-Reform Act Benchmark Study' (2001) 15 Australian Journal of Family Law 114.
[126] Caruana and Ferro, above n 125, 104.
[127] Parkinson and Smyth, above n 89, cited in Caruana and Ferro, above n 125, 104.
[128] See above, Section 2.1.