Thursday, 30 October 2008

Changing children's arrangements: Rice and Asplund revisited (again)

The Full Court of the Family Court has considered in the recent case of Miller and Harrington at the question of the Rule in Rice and Asplund. The Rule is in effect- where there are existing orders concerning children, should an applicant demonstrate that there has been a factual change before being able to proceed when seeking parenting orders in court? I blogged about this earlier this year, highlighting the recent decision in SPS and PLS.

The court held in Miller and Harrington:

In SPS and PLS (2008) FLC 93-363, Warnick J held:
... in strict logic,
if a judge is unable to determine on the papers if a change of circumstances,
sufficient to embark on a fresh hearing of a parenting issue exists, then what
the judge should embark upon is a hearing directed to that question, not one
directed to “how the welfare of the children should best be served”

However, ellipsis in logic or not, subsequent authority has clearly
reiterated that if the rule is not applied as a preliminary matter, then the
hearing that follows is a full hearing of the “custody dispute” [emphasis

Those statements can be seen to be supported by the earlier authorities
referred to by his Honour. (See paras 66 – 68 of Warnick J’s judgment). Warnick
J goes on to say:
... In reality, the facts that relate to the best
interests of children per se and to the determination of such questions as
whether there has been a change of circumstances of sufficient magnitude to
justify a fresh consideration of parenting arrangements are likely to be
identical or at least intertwined and to the extent that the facts are
otherwise, they may well not be susceptible of identification or assessment for
weight until all of the evidence bearing upon factors that relate to a child’s
best interests are before a court. The nature of the hearing that follows if the
Rice v Asplund rule is not applied as a preliminary matter, as described by
authority, may well be the wise and practical choice.

Later, Warnick J says:
Thus, in my view, 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 the party to appear or some lack of compliance with form and
procedure, but rather because, assuming the evidence of the applicant is
accepted, there is an insufficient change of circumstance shown to justify
embarking on a hearing. Though sometimes unstated, the underlying conclusion
will, or ought be, about the interests of the child in not being subjected to
further litigation, is more powerfully in the child’s welfare, than to allow the
application to continue.

In our view, that passage need not be taken as saying that the only
way in which the rule in Rice and Asplund can be applied at a preliminary stage
is on the basis that the case of the applicant for parenting orders is taken at
its highest.

Nor, as presently advised, do we think that the authorities cited
by Warnick J in SPS preclude the possibility that, in a “preliminary”
hearing for the purpose of ascertaining if an application for parenting orders
should go no further because of the rule in Rice and Asplund, some resolution of
factual disputes may occur, for example, whether a change of circumstances has
or has not occurred.

However, the qualitative question of whether a change that has
occurred is or is not sufficiently significant to justify a full further hearing
of a parenting issue may be one much more difficult to answer in a preliminary
hearing involving resolution of only some disputed facts.

This observation may be behind the approach that either the case of the
applicant for parenting orders is, at a preliminary stage, taken at its highest,
or the hearing embarked upon is an enquiry into all matters relating to the best
interests of the child or children.

On the other hand, there is authority to suggest that these are not the
only legitimate procedures. In Collivas & Cassimatis [2007] FMCAFam 293,
Wilson FM, after noting that one party submitted that the other’s
application should be summarily dismissed as it did not overcome the threshold
imposed by cases such as Rice & Asplund, said:
...questions arise as to
the procedure to be adopted on this application. The first question is whether
the threshold question should be decided as a preliminary issue, or whether
there should be a full hearing of the evidence. The second question is, assuming
that the threshold question is decided separately how the evidence adduced by
the parties should be treated for the purpose of determining that issue. For
example, if the Court looks only to the affidavit evidence adduced by the
applicant and determines whether, on that material, the case should be allowed
to go forward, then it seems to me that there is no point allowing the
respondent to put on further affidavit evidence. On the other hand, if in
determining the threshold issue the Court effectively conducts a mini-trial,
then the respondent should be afforded the opportunity she seeks to adduce
further evidence in reply to that served late by the applicant.
Among the
authorities to which Wilson FM referred was King & Finneran (2001) FLC
93-079 at p 88,367 where Collier J said:
To apply the test in Rice
& 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. ...
Wilson FM also said, of the decision in
L & L (1992) FLC 92-274, that the Full Court of the Family Court
approved of the judge at first instance dealing with a question of whether to
permit a re-opening of parenting issues as a preliminary issue and to restrict
cross-examination accordingly. He said that, in that case, evidence was adduced
from a court counsellor who was cross-examined and that the Full Court endorsed
the approach taken in that case.

However, the learned Federal Magistrate continued:
What the cases
do not make clear is the process that the court should follow if it decides the
threshold question in advance on a preliminary basis. That is, should the
application be dealt with as on a demurrer or strike out application, and the
court only look at the material of the applicant and decide, on that material
alone, whether, assuming it is accepted, there is sufficient evidence to warrant
the earlier orders being revisited. Or should the court treat the application
similarly to a summary judgment application, and look at the material of both
sides, and decide whether there is a serious issue raised which justifies the
earlier orders being revisited. Or should the court effectively conduct a trial
on the preliminary issue, with evidence and cross examination on the alleged
change in circumstances.

There is some guidance as to the approach to be adopted. In R & B
H, supra, the use of language that the court should be left in no doubt that it
is necessary to revisit the parenting orders supports a critical analysis of the
applicant’s material. Although the passage from King & Finneran seems to
suggest that court looks at all material then available to the court, which
encompasses the material from both sides, it seems to me that the court should
logically follow a three step process, sequentially dealing with the three
questions articulated in paragraph 18 above. Each case will vary of course as to
the stage at which the decision can be made that there is/is not sufficient
evidence to warrant a re-opening of the parenting issues. As the learned authors
of Australian Family Law & Practice, Brown (sic) & Fowler, observe at
[16-360], the Full Court of the Family Court has made it clear that the question
of whether there were circumstances which required a reconsideration of a
parenting issue might, but need not, be determined as a preliminary issue.
However, the court may consider that in light of the alleged changed
circumstances, it was more appropriate to consider all the facts of the case
before deciding whether the changes (sic) circumstances existed. An applicant’s
material might disclose no change in circumstance such that the application can
be summarily dismissed without a respondent being required to put on evidence.
An applicant’s material might raise the suggestion that there is a changed
circumstance which requires investigation but after reading the respondent’s
material the court might be satisfied that there is nothing in the point raised.
The court may, as a matter of discretion determine the threshold issue without
testing the evidence. Alternatively there maybe contested issues of fact as to
whether there are changed circumstances in which case a court may need to hear
from witnesses and allow cross-examination. (emphasis added)

In the following paragraph, Wilson FM set out passages from the
decision of the Full Court of the Family Court in Saad & Saad (1993) FLC
We refer to several of the paragraphs quoted, as they bear on the
question under discussion:
(3) Although it may be inappropriate, and is often
unhelpful, in proceedings in relation to the guardianship and custody of or
access to a child, to treat either party as bearing an onus of proof in relation
to the welfare of the child, where a party applies for the variation or
discharge of an existing order of that kind that party bears at least a forensic
onus of placing before the Court sufficient evidence of changed circumstances
since the making of the existing order upon which the Court could be satisfied
that it is in the interests of the welfare of the child to vary or discharge
that order. (Rice and Asplund (1979) FLC 90-725; Freeman and Freeman (1987) FLC
(4) It was therefore not for the wife to adduce evidence sufficient
to satisfy her Honour that Burton, J’s orders should continue in force, but
rather for the husband to at least place before her evidence sufficient to
justify a reconsideration of those orders, and only if that were done was her
Honour called upon to decide, in the exercise of her discretion, whether the
welfare of the child required the discharge or variation of those orders, or
their continuance.
These passages may imply that the initial examination is
on the case put forward by the applicant for variation. However, in the
following passages the Full Court spoke of other material to which a judge might
have regard in such and examination.
(6) In determining the husband’s
application, her Honour was entitled to have regard not only to the evidence
placed before her by the parties and to the orders of Burton, J. which she was
being asked to vary, but also, for the purpose of deciding whether there had
been any relevant change of circumstances since the making of those orders, to
Burton J’s published reasons for making them, and to any other relevant orders
of the Court to which her attention was directed by the parties or by the
material before her. Had there been in existence a transcript of the proceedings
before Burton, J. leading to his orders of 6 June, 1989, she would have been
entitled to have regard to that also, or at least to those parts of it which
related to the orders which she was being asked to vary or discharge.
...(emphasis added)

On a topic that has not been often examined, we think the discussion by
Wilson FM a useful one. However, because, as we have said, the topic was not the
subject of submissions before us, we do not necessarily express agreement with
all that Wilson FM has said nor address further any tension which may exist
between those cases which appear to speak of but two choices, either the
application of the rule as a preliminary matter taking the applicant’s case at
its highest or a full hearing, and those cases that suggest a broader range of
process. (emphasis added)

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