Animosity is not a significant change of circumstance
- The definitive statement of the relevant principle comes from Evatt CJ in Rice v Asplund as follows:
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 …
- The Full Court in Carriel v Lendrum observed in respect of the Rice v Asplund principle as follows:
57. In a case where the principle in
- Rice v Asplund
arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the children at the time of its making. Second, the fact that an order has been made reflect’s that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the children whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the children to embark upon further litigation enquiring as to the children’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.
- It is commonly agreed that the discretion of the Court can be exercised to determine as a preliminary issue whether or not an applicant has established a significant or material change in circumstance. Relevant, however, to the argument mounted in this matter by the mother are comments of Warnick J in SPS & PLS where his Honour said:
What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing … accordingly the rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far reaching changes.
- His Honour’s comments are particularly pertinent for the matters now before me where the father seeks to re-litigate the broad issue of with whom the children shall live, whereas the mother proposes to re-litigate only the discrete issue as to the location of changeovers.
- Trial courts are, of course, acutely aware of the fact that circumstances for parents and children will inevitably change following the making of final parenting orders. Nevertheless, it is not considered in children’s best interests to attend on them the direct or vicarious stresses of family law litigation between their parents simply to consider the vagaries of life. It is for this reason that the authorities import the adjectives such as ‘meaningful’, ‘significant’ and ‘substantial’ changes in circumstances before it will entertain more litigation.
- The fact of animosity between these parents is not, in my view, a significant change in circumstance. Some form of conflict necessarily sits behind all litigation and it then beholds parties to move forward armed with the court’s orders so as to cooperatively parent the children. The incidents related by the father are, in my view, more aberration than a course of conduct on behalf of the mother (or either of them) necessitating further litigation.
- The mother’s changes of residence must be seen within context. She gives prima facie reasonable explanations for those changes. I accept that she remains generally within the greater Launceston locality being at most some 20 – 30km from central Launceston and, in my view, within the spirit of the father’s proposal and my orders made in July 2014. It is a fact that people move house and, on occasions, a number of times. This of itself is not, in my view, a material change of circumstance without any more probative evidence as to manifest negative impact on the children.
- The section 11F Family Report notes the mother being supportive of a resumption of time between the children and the father following the police intervention in late August 2016. Again, I see this more as an aberration in what should be a cooperative relationship rather than a course of conduct or substantial change in circumstance.
- There is an order for equal shared parental responsibility which carries with it numerous entitlements. The father is able to enforce his entitlements by simply providing copies of my orders to the children’s school or child carer and this should easily allow him access to teachers and the like without further litigation.
- The father’s observations of the children’s demeanour are generalised and uncorroborated save and except that X attends upon a school counsellor. At this level, however, I am not persuaded that the children’s behaviour constitutes a change of circumstance of such significance or materiality that a re-litigation of the children’s parenting and living arrangements would be in their best interests or should be permitted.
- Consequently, on consideration, I am not satisfied that, taken alone or cumulatively, the father’s complaints in respect of the mother’s parenting are of such significance that there should be further litigation in respect of their major parenting arrangements noting that it was the father, in any event, who effectively conceded a primary care, albeit conditionally, to the mother as recently as 2014.
- Similarly, I am not persuaded on the mother’s case that she successfully argues any relevant change circumstance in respect of the discrete issue of changeovers. My orders of July 2014 stipulate (omitted) as the designated changeover point, failing any agreement between the parties to the contrary. It appears that they have sensibly reached an alternative agreement being alternating between Devonport and (omitted). If this agreement falls over then (omitted) remains the court ordered changeover point.
- The mother appears to argue that the animosity between the parties necessitates the use of a relationship centre as changeovers. Again, the only serious incident documented in the parties’ affidavits is, in my view, properly categorised as an aberration rather than a course of conduct. I again note the mother’s statement to the Family Consultant that she is “supportive of time between the children and their father if resuming in the form that existed previously”.
- Further, the impending birth of the mother’s child and issues of child support payments do not to my mind constitute changes of circumstances of such significant that there should be further litigation between the parties even as to this discrete issue. If the parties or either of them have concerns as to their inability to avoid conflict at changeovers then those changeovers might take place in in a public place at (omitted) or otherwise as agreed.
- Generally, conflict is endemic in family law proceedings. Litigation is not normally seen as a pleasant or productive process for parents or children. Courts do not expect that parents will be enamoured with their orders. Courts do, however, reasonably expect that armed with those orders parents will move on to parent their children cooperatively and so as not to expose their children to residual parental conflict. On the basis that litigation itself is generally disruptive of parental relationships and can prima facie be seen as contrary to children’s best interests, the courts have wisely placed the bar at a fairly high level on parents re-litigating children’s disputes. To my mind, that bar is not crossed on this occasion. The application and the response will both be dismissed.