“Rice v Asplunde” is not a rehearing
Diani & Diani  FCCA 607 (22 March 2016)
The legal principles
- The rule in Rice & Asplund is well-known. In that case, the Full Court had to consider what principles should apply when a court is faced with an application to change an earlier parenting order. Evatt CJ said the following:
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“The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order into the reasons for 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… 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 trial Judge has discretion as to whether to consider the Rice & Asplund principle as a preliminary issue or after a full contested hearing. In my view, in the circumstances of this case it is appropriate to determine it as a preliminary issue.
- It is important to bear in mind that the rule in Rice & Asplund is merely a manifestation of the best interests principle: see SPS & PLS  FamCAFC 16 and Marsden & Winch  FamCAFC 152 at .
- In Marsden & Winch the Full Court stated at :
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“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.
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(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
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(3) If there is such 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.”
The Mother’s argument
- The mother refers to the principle in Rice & Asplund and several more recent cases addressing this principle. She has attempted to address the issues raised in those cases.
- Considering the mother’s written and oral submissions (noting that much of her affidavits are submissions, not evidence), she complains that the experts and the Court did not apply the family violence best principles. That type of argument is really seeking to ask the Court to reconsider the matter without filing an appeal. The mother was represented at Court and consented to orders. She may regret that decision but she had the benefit of legal advice.
- The language she uses in her affidavit is significant. A person reading her affidavit without knowing how the current orders came into force would be left with the impression that she had no part in the orders being made and that the orders were made over her objection and without her input. At paragraph 8 she says the Court “relied totally on the evidence” of Dr (omitted). This is not correct. Much of her oral argument focussed on her complaint against Dr (omitted) and her belief that his report was instrumental in the consent orders being made.
- At paragraph 35 she refers to the children being “forcefully removed” from her care via court order. Interim orders reversing the children’s living arrangements had been made some 6 weeks before. The mother had the opportunity to argue that this decision should be revised upon a testing of the evidence at a final hearing.
- The mother states that the children were removed from her care based on inaccurate and misleading information provided by Dr (omitted) and family consultant, Mr N. She also refers to unfounded allegations made by the father. She complains that the Court did not take into account family violence.
- She refers to the interim decision which was made several weeks before the final hearing where the Court changed the living arrangements of the children. This is where she refers to the children being forcibly taken from her. The mother did not appeal that decision which is not surprising given the final hearing was only weeks away. At the final hearing, she had the opportunity to challenge not only Dr (omitted)’s report but also the family reports. She says that if the children had not been taken away from her weeks before she would have challenged the change in the children’s living arrangements but because the children had been taken from her, she did not think she would succeed. It is difficult to accept that argument. In fact, one would think that the mother would have had more reason to challenge those reports.
- Her complaints about the reports are really matters which she had the opportunity to challenge with the experts directly through cross-examination. The mother had the opportunity to do that and chose not to. If she wanted to put on other evidence to challenge the conclusions of the family report writer and Dr (omitted), she could have sought an adjournment of the final hearing. She could have sought to appeal. She did none of those things.
- The mother sets out a quote from the full court decision in D and Y (1995) FLC 92 – 581 being:
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“The change of fresh circumstances must be such that upon becoming advised of it and being satisfied of its existence, the court would be left in no doubt that it was necessary to re-litigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or change circumstance would result in a change to the orders. It merely indicates that the change of fresh circumstances must be such that if taken into account there was a real likelihood that change may follow.”
- It is clearly correct that the mother does not have such a heavy burden, but she must show that a fresh or change in circumstance will result in a change of orders. I am not satisfied that she has made out the lower test that there is a real likelihood that the orders will be changed.
- The mother also refers to the decision of DL and W (2012) FamCAFC and she extracts a quote from that case which quotes Evatt CJ in Zabaneh and Zabaneh  FamCA 18. The quote she refers to is:
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“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 taken into account.”
- That same case also quotes Nygh J in McEnearney v McEnearney (1980) FLC 90-866 where His Honour discussed the policy underpinning the Rice & Asplund principle and observed that bringing an end to litigation may be even more important in parenting cases as the psychological harm to a child when their parents seek to canvass parenting issues again and again can be very damaging. This is an important factor in this case.
- In this case, the mother filed her application less than a year after the final orders were made and it is clear is that she spent a considerable time prior to filing, gathering reports which she thought would assist her case. Whilst much of the evidence she has gathered post-dates the hearing, they do not raise new issues but rather seek to impugn the earlier reports. This is particularly with respect to the mother’s mental health.
- Finally, the mother quotes from Meyer & Shipton  FCCA 307. The quote appears as follows:
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“Orders made after a contested hearing are made by a dispassionate and disinterested judicial officer. It makes no difference financially to him or her whether the case is litigated or settled. He or she does not face the stress faced by litigants at a hearing. Orders made by consent are in a different category. They may represent what the parties believed was in the best interests of a child but there may also be other factors in play. The agreement may not have been concluded between parties in an equal bargaining position. An assertive party may have an advantage over an unassertive party. A party who agrees to arrangements which he or she believes is not in the best interests of the child may do so because of the costs involved in litigating the matter and/or the stress involved in litigating it. The orders may be a result of a compromise. Where each party is contending that the child should primarily live with him or her and each has an arguable case they may take the attitude that a guaranteed half a loaf is better than facing the possibility that the result will be no loaf at all and agree on a shared arrangement. There is no reason to assume that consent orders must have been made solely on the basis of what the parties perceived was the best interests of the child.”
- The comments of Judge Brewster above are correct with respect to consent orders. There are numerous authorities to make it clear that the rule in Rice & Asplund is not binding and that is a matter of common sense given that it is another manifestation of the paramountcy principle that provides that the best interests of the child are the court’s paramount consideration. The case before Judge Brewster involved different circumstances than in this case. That case concerned a 2 year old child. The parties consented to a week about arrangement. It is also clear as Judge Brewster notes that the Rice & Asplund principle also applies when consent orders are entered into. It is also important to put the making of consent orders in context. There is a great difference between consent orders made early in the proceedings without expert evidence and consent orders made after the evidence for a final hearing has been filed. Each case depends on its own facts.
- When considering whether or not to allow there to be further parenting proceedings, one of the considerations clearly must be whether the orders were made after a contested hearing or whether they were consent orders, but that does not mean that because orders were made by consent without the evidence being tested, that parties should be able to start litigation again. That could lead to a flood of cases of that nature. It is necessary to carefully consider the individual circumstances of the case. The fact that the orders were made by consent is one relevant factor in this case amongst many.
- The mother did not appeal the orders. In the recent Full Court decision of Darley & Darley  FamCAFC 10 the mother appealed final parenting consent orders. The consent orders were lengthy and were made on the fourth day of the final hearing. In this case, the consent orders are also lengthy and were made on the first day of the final hearing.
- In Darley’s case, the mother in that case raised the same argument as has been raised in this case that the judge did not take into account family violence. The Full Court made the following observations at paragraphs ,  – ,  and :
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“26. The mother asserts centrally on this appeal that family violence perpetrated by the father upon her (and, it should be noted, the children) ought to have been taken into account by his Honour and, she says, it was not. She also apparently asserts that the consideration of that issue was rendered more acute by her self-represented status at the time the consent orders were made…
28. It is important to stress that the serious assertions made by the mother were by no means the only serious assertions that would have required adjudication by his Honour if the matter proceeded to a determination before him. The father, too, made serious assertions to the effect that the mother was engaging in conduct designed to undermine and harm his relationship with the children.
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29. The central assertions by each of the parties, if either was established, had the potential to result in a finding that either or both of the parties had caused “physical [or] psychological” harm to the children. Plainly, then, a determination by his Honour brought with it the risk of such a finding and as a result consequences for the orders sought by each party and, ultimately, for the orders that the court might determine were in the best interests of the two children.
30. As a consequence, the potential for findings about each or both such issues was a highly relevant matter for each of the parties to consider in deciding whether to resolve co-parenting arrangements for themselves or, alternatively, to abdicate that decision about their children to his Honour.
42. Here, the parties were entitled to have the trial proceed to its conclusion and have his Honour “adjudicate it on the facts” including the competing serious assertions made by both parties and the single experts. However, they did not. By their respective applications to have his Honour make the orders they had each agreed to, each party was asking his Honour not to adjudicate upon the issues. Further, each party was, by their respective application, asserting that the orders proposed to be made were in the best interest of the children.
62. Each assumes errors pertaining to an adjudication of issues which, as a result of the application for the making of consent orders by both parties, the court was never asked to adjudicate. Indeed, as we have said, the parties’ application is in essence an application that the court not adjudicate those issues. The principles referred to in Robinson and Willis (above), pertain. The consequence is that none of the grounds 2 through 10 have any foundation.”
- I return to the 3 steps referred to in Marsden & Winch set out at paragraph 23 of the judgment. I am not satisfied that the complaints the mother raises about the court process and the experts are matters which amount to information that was not available at the hearing which could amount to a new circumstance as Evatt CJ referred to in Rice and Asplund.
- The reports the mother obtained do not raise a change of circumstances as referred to in Rice & Asplund and other cases since; rather, it is seeking to challenge the earlier evidence before the court which is an issue for an appeals court, not a court at first instance.
- Whilst the orders were made by consent, the orders are detailed and there was significant material on the court file. This consisted of not just the expert reports of Mr N and Dr (omitted) but other experts relied on by various parties, as well as affidavits filed by the parties themselves. There is also the significant litigation history.
- It is very clear that there are many contested issues between the parties and there have been for years. It is also clear that the ongoing proceedings have had a significant impact on the children who are very much aware that they are in the middle of the conflict between their parents.
- This much is clear from what Ms P sets out in her email quoted above. There needs to be an end of the proceedings for the children’s sake. These children, as the mother herself complains, have been interviewed multiple times. If the matter was to proceed, the children would be subjected to further interviews. An ICL would need to be reappointed. It is plain to see that the children have been adversely affected by the litigation and ongoing conflict between their parents. They probably do not remember a time when they have been relieved of this burden.
- I am not satisfied that if this matter proceeded to a hearing there is a likelihood that the current orders would be varied significantly. I am not satisfied that any variation, if so ordered, would be sufficient to justify putting the children through further litigation.
- The mother’s application is misconceived. She is really seeking to challenge the evidence she had the opportunity to challenge at the hearing.
- For these reasons I will dismiss the mother’s application.